Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows: (a) The Seller is a corporation duly organized and validly existing under the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder. (b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder. (d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally. (e) Each Receivable sold hereunder is an Eligible Receivable. (f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof. (g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser. (h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances). (i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months. (j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA. (k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy. (l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement). (m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l). (n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law. (o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed. (p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser. (q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Alliance One International, Inc.)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to the Issuer and the Indenture Trustee on behalf of the Securityholders that, as followsof the Closing Date or as of such date specifically provided herein:
(ai) The the Seller is duly organized, validly existing and in good standing as a corporation duly organized and validly existing under the laws of the State of VirginiaDelaware and is and will remain in compliance with the laws of each state in which any Mortgaged Property is located to the extent necessary to fulfill its obligations hereunder;
(ii) the Seller has the power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to execute, deliver and perform, and to enter into and consummate, all transactions contemplated by this Agreement. The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement and this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or other similar laws in relation to the rights of creditors generally;
(iii) the execution and delivery of this Agreement by the Seller and the performance of and compliance with the terms of this Agreement will not violate the Seller's articles of incorporation or by-laws or constitute a default under or result in a material breach or acceleration of, any material contract, agreement or other instrument to which the Seller is duly qualified a party or which may be applicable to do business the Seller or its assets;
(iv) the Seller is not in every violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction where over the nature of Seller or its business requires it to be so qualifiedassets, except where failure to so qualify which violation might have consequences that would not be likely to materially and adversely affect the Purchaser's rights condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.;
(bv) The the Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vi) the Seller has good, marketable and indefeasible title to the Mortgage Loans, free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans and upon the payment of the purchase price under the Mortgage Loan Purchase Agreement by the Depositor, the Depositor will have good and marketable title to the Mortgage Notes and Mortgage Loans, free and clear of all liens or encumbrances;
(vii) the Mortgage Loans are not being transferred by the Seller with any intent to hinder, delay or defraud any creditors of the Seller;
(viii) there are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of of, or compliance by the Seller with, this Agreement and or the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchasestransactions contemplated by this Agreement, (i) are within the Seller's powersexcept for such consents, (ii) approvals, authorizations or orders, if any, that have been duly authorized by all necessary company action, obtained; and
(iii) do not contravene (1x) the Seller's organizational documents, (2) any law, rule or regulation applicable to consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting and the Seller or its property or (4) any ordertransfer, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, assignment and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer conveyance of the Seller's interest in Mortgage Notes and the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables Mortgages by the Seller pursuant to this the Mortgage Loan Purchase Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables are not subject to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, bulk transfer or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policysimilar statutory provisions.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Thornburg Mortgage Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as followstowards the Purchaser, that:
(a) The Seller 6.1 It is a corporation duly organized and validly existing exists under the laws of the State of VirginiaIsrael and has all necessary company power and authority to enter into tins Agreement, to carry out its obligations hereunder and is duly qualified to do business in every jurisdiction where consummate the nature transactions contemplated hereby;
6.2 The execution and delivery of its business requires it to be so qualifiedthis Agreement by the Seller, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables its obligations hereunder and the Seller's use consummation by the Seller of the proceeds of Purchases, (i) are within the Seller's powers, (ii) transactions contemplated hereby have been duly authorized by all necessary company action, (iii) do not contravene (1) requisite corporate action on the part of the Seller's organizational documents;
6.3 It is the sole beneficial owner of the Purchased Shares, free and clear of all Liens, and. is entitled to sell and transfer to the Purchaser the full legal and beneficial interest in the Purchased Shares, on the terms set out in this Agreement;
6.4 The Purchased Shares are duly authorized, validly issued, fully paid and nonassessable in compliance with any applicable law concerning the issuance of securities, and have the rights, preferences, privileges, and restrictions set forth in the Company’s Articles of Association as of the date hereof;
6.5 Except as set forth under any of the terms and provisions of this Agreement, the execution and delivery of this Agreement by the Seller does not, and the consummation of the transactions contemplated hereby and thereby will not: (2i) constitute a breach of any law, rule or regulation of any government applicable to the Seller; (ii) require the consent or agreement of any court, governmental body or entity; (3iii) violate of, or conflict with or constitute a default under any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on agreement, or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation or enforcement of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed Purchased Shares;
6.6 The representations and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or warranties made by the Seller for in this Agreement are the due execution, delivery exclusive representations and performance warranties made by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction transactions contemplated hereby. The Seller is not in default of hereby disclaims any contractual obligation other express or in violation of any order, rule implied representations or regulation of any governmental authority, which default or violation may have a material adverse effect upon warranties with respect to: (i) the financial condition of the Seller or Purchased Shares; and (ii) the insurance of any Eligible Receivables under the PolicyCompany, its business condition, assets or liabilities.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On (a) The Seller hereby represents and warrants to the Depositor and the Certificate Insurer that as of the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(ai) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement has been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement nor the consummation of the transactions herein contemplated, and is duly qualified to do business nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its propertiesbusiness, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(b) The representations and warranties of the Transferor with respect to the Transferred Mortgage Loans in the Transfer Agreement were made as of the date the transferred loans were sold to LBH. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in the Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if adversely determined the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, may then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the financial condition value of the Seller related Mortgaged Property as security for the related Transferred Mortgage Loan or on the collectability of a use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material portion (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the Sold Receivables related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) involve this Agreement or any transaction contemplated herebya single “variable rate” (within the meaning of Treas. The Seller is not Reg. §1.860G-1(a)(3)) in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) throughout the financial condition term of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.Transferred Mortgage Loan;
(lxv) The balance sheets As of the Seller and its consolidated Subsidiaries as at December 31Closing Date, 2011, and no Transferred Mortgage Loan is the related statements subject of income and retained earnings pending or final foreclosure proceedings;
(xvi) As of the Seller and its consolidated Subsidiaries as of and for Closing Date, based on delinquencies in payment on the fiscal year then endedTransferred Mortgage Loans, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent would not initiate foreclosure proceedings with generally accepted accounting principles consistently applied. From December 31, 2011 respect to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made any Transferred Mortgage Loan prior to the next scheduled payment date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).on such Transferred Mortgage Loan;
(mxvii) There No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no pending orTransferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the best knowledge New Jersey Home Ownership Security Act of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller “High-Cost Home Loan” subject to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” New Mexico Home Loan Protection Act (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (GreenPoint Mortgage Funding Trust 2006-Ar7)
Representations and Warranties of the Seller. On The Seller represents, warrants and covenants to the Closing DatePurchaser, as well of the Funding Date or as on each Purchase Dateof such other date specified below, the Seller represents and warrants as followsthat:
(ai) The Seller is a corporation duly organized and validly existing corporation in good standing under the laws of the State of VirginiaNew York and is qualified to transact business in, is in good standing under the laws of, and is duly qualified to do business in every jurisdiction where possesses all licenses necessary for the nature conduct of its business requires it in, each state in which any Mortgaged Property is located or is otherwise exempt or not required under applicable law to be so qualifiedeffect such qualification or license and no demand for such qualification or license has been made upon the Seller by any such state, except where failure and in any event the Seller is in compliance with the laws of each such State to so qualify would not be likely the extent necessary to materially adversely affect ensure the Purchaser's rights hereunder.enforceability of each Mortgage Loan;
(bii) The Seller has full power and authority to hold each Mortgage Loan, to sell each Mortgage Loan pursuant to this Agreement and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunderAgreement, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document and each Assignment of Mortgage to which it is the Purchaser constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy laws and other similar laws of general application affecting creditor's rights generally.of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance;
(eiii) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds None of any Purchase will be usedthe execution and delivery of this Agreement, directly or indirectly the origination of the Mortgage Loans by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U sale of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables Mortgage Loans to the Purchaser, enforceable against creditors ofthe consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and purchasers fromconditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller. The ’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 Seller shall 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 Seller or its property is subject;
(iv) There is no litigation pending or to the best of Seller’s knowledge threatened with respect to the Seller which is reasonably likely to have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to a material adverse effect on the sale of each Sold Receivable hereunderthe related Mortgage Loans, the Seller is the legal and beneficial owner execution, delivery or enforceability of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the SellerAgreement, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or on compliance by the collectability of a material portion Seller with this Agreement, the sale of the Sold Receivables Mortgage Loans or (ii) involve the consummation of the transactions contemplated by this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any orderexcept for consents, rule or regulation of any governmental authorityapprovals, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller authorizations and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of orders which have been furnished to the Purchaser, fairly present the financial condition obtained;
(vi) The consummation of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of transactions contemplated by this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Agreement is in the business, operations, property or financial or other condition ordinary course of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge business of the Seller, threatened action or proceeding affecting and the Seller or any transfer, assignment and conveyance of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect Mortgage Notes and the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables Mortgages by the Seller to the Purchaser pursuant to this AgreementAgreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(vii) Neither this Agreement nor any statement, and all report or other transactions between the Seller and the Purchaseragreement, have been and will document or instrument furnished or to be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed furnished by the Seller pursuant to this Agreement contains or will contain any materially untrue statement of facts or omits or will omit to state a fact necessary to make the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has statements contained therein not used any selection criteria that are materially adverse to the Purchaser or its assignees.misleading; and
Appears in 1 contract
Sources: Mortgage Loan Flow Purchase, Sale, and Servicing Agreement (Sequoia Mortgage Trust 2007-1)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to ACC that, as of the date hereof, and shall be deemed to represent and warrant to ACC as of each Acquisition Date, as follows:
(a) The if a corporation, limited liability company, or partnership, the Seller is a corporation has been duly organized and is validly existing and in good standing as a corporation, limited liability company, or partnership, as the case may be, under the laws of the State jurisdiction of Virginia, its organization and is duly qualified to do conduct business in every jurisdiction where the nature of its business requires each State in which it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.conducts business;
(b) The the Seller has full power and authority to own or lease its properties and to conduct its business as presently conducted and to execute, deliver and perform the Seller Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby;
(c) the execution, delivery and performance by the Seller of this Agreement the Seller Agreements and the all other instruments and documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) transactions contemplated hereby are within the Seller's powers, (ii) have been duly and validly authorized by all necessary company actionrequisite action and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrances upon any of its property or assets pursuant to the terms of, any indenture, mortgage, deed or trust, loan agreement or other agreement or instrument by which it is bound or to which any of its property or assets is subject, nor will such action result in any violation of the provisions of its organizational documents (iiiincluding its articles of incorporation and bylaws or partnership agreement, as the case may be) do not contravene (1) the Seller's organizational documents, (2) or of any lawstatute or any order, rule or regulation applicable to of any court or governmental agency or body of the SellerUnited States, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on state or affecting the Seller any political subdivision of either having jurisdiction over it or any of its property properties or (4) any assets, and no consent, approval, authorization, order, writregistration, judgmentfiling, awardqualification, injunction license, or decree binding on permit of or affecting the Seller with any such court or its property, and (iv) do not result in or require the creation of any lien, security interest such regulatory authority or other charge such governmental agency or encumbrance upon body is required to be obtained by or with respect to any of its properties (except for the transfer Seller in connection with the execution, delivery and performance by the Seller of the Seller's interest in Seller Agreements, all other instruments and documents to be delivered hereunder and the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed consummation of the transactions contemplated hereby, and delivered by the Seller.no transaction contemplated hereby requires compliance with any bulk sales act or similar law;
(cd) No no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document the Seller Agreements except for the filing of the UCC financing statements and the giving of notices referred to which it is a party to in Section 2(d), all of which, at the time required in Section 2(d), shall have been duly made and shall be in full force and effect;
(e) each of the Seller Agreements has been duly and validly authorized, executed and delivered by it hereunder.
(d) This Agreement the Seller and constitutes the legal, a valid and legally binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or or. other similar laws affecting creditor's the enforcement of creditors' rights generally.
, and subject as to enforceability to general principles of equity (e) Each Receivable sold hereunder regardless of whether enforcement is an Eligible Receivable.sought in a proceeding in equity or at law);
(f) No proceeds there are no actions, suits, proceedings or investigations pending or, to the knowledge of any Purchase will be used, directly or indirectly by the Seller, for threatened, before any court, administrative agency, arbitrator, governmental body or other tribunal, (i) which, if determined adversely to the purposeSeller, whether immediatecould have a material adverse effect on the business, incidental operations, properties, assets or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U financial condition of the Board Seller, (ii) asserting the invalidity of Governors any of the Federal Reserve System Seller Agreements, (iii) questioning the consummation by the Seller of any of the United States transactions contemplated by any of Americathe Seller Agreements or (iv) which, as if determined adversely, could materially and adversely affect the same is from time ability of the Seller to time in effectperform its obligations under, and all official rulings and interpretations thereunder or thereof.the validity or enforceability of, any of the Seller Agreements or the Commercial Receivables;
(g) Sales of Sold Receivables by the Seller pursuant has all necessary permits, licenses, agreements, accreditation, certifications and Governmental consents to this Agreement will constitute operate and conduct its business, including the provision of all services reflected in and giving rise to each Commercial Receivable, as it is presently being conducted, subject to minor exceptions and deficiencies which are not material and do not affect the conduct of its business and its ability to own, collect and sell or grant a valid sale, transfer, and assignment security interest in any Commercial Receivables;
(h) Exhibit C lists (i) the address of the Sold chief executive office of the Seller and (ii) the location(s) of the office(s) where the Seller keeps all of its Commercial Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Sellerfiles. The Seller shall does not have no remaining property interest an office in any Sold Receivablethe States of Colorado, Related Security Kansas, New Mexico, Oklahoma, Utah or CollectionsWyoming:
(i) there has been filed in proper form, or a filing extension from the appropriate governmental authority has been obtained with respect to, all federal, state, an local income, franchise, sales, use, property, excise, payroll and other tax returns and all other reports (whether. Immediately prior or not relating to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken taxes) required by law to be filed by or on behalf of the Purchaser)Seller with any governmental authority. When All taxes, fees, assessments and charges of whatsoever nature due or payable by the Purchaser makes a Purchase it shall acquire valid Seller on or before the date hereof pursuant to said returns or reports or otherwise (including, without limitation, payments of estimated taxes and perfected first priority ownership deposits of each Sold Receivabletaxes withheld by or on behalf of the Seller) have been paid. There is no unpaid interest, Related Security and penalty or addition to tax due or claimed to be due from, nor any unpaid tax deficiency determination or assessment outstanding against the Collections Seller, nor any basis therefor known to the Seller. No governmental audits or investigations with respect thereto free and clear of any Adverse Claim arising as to taxes are, to the result of any action taken or not taken by Seller's knowledge, in progress with respect to the Seller, and no effective financing statement governmental authority has given notice that it will begin any such audit or other instrument similar investigation. All returns and reports required to be filed, and all taxes, fees, assessments and charges required to be paid, of whatsoever nature, have been so filed and paid. The Seller has complied in effect covering all material respects with all applicable laws relating to the employment of labor, including, without limitation, ERISA, and those relating to wages, hours, collective bargaining, unemployment insurance, workers' compensation, equal employment opportunity and the payment and withholding of taxes, including income and social security taxes, and has withheld (and duly segregated, deposited or paid over to the appropriate authorities) all amounts required by law or agreement to be withheld from the wages or salaries of its employees and is not liable for any Sold Receivable, arrears of wages or benefits or any interest therein, taxes or penalties for the Related Security or the Collections Seller's failure to comply with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with foregoing;
(j) the information furnished by or on behalf of the Seller to ACC and to agents and employees of ACC prior to the date of this Agreement and during the term of this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time transaction contemplated by the Seller to the Purchaser in connection with this Agreement Agreements is or and will be accurate true and correct in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not and will not omit any information to state a material fact necessary to make the information statements contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.misleading;
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is solvent and will not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse become insolvent after giving effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed transactions contemplated by the Seller in SEC filings on Form 8KAgreements; the Seller has not incurred debts or liabilities beyond its ability to pay; the Seller will, Form 10‑Q and amendments to Form 10‑Q made prior after giving effect to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction transactions contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the PurchaserAgreements, have been and will be an adequate amount of capital to conduct its business in the foreseeable future; the sales of Commercial Receivables hereunder are made in good faith and without intent to hinder, delay or defraud present or future creditors of the Seller. Each such sale ; and the Seller has been made valid business reasons for “reasonably equivalent value” selling its interest in the Commercial Receivables rather than using the Commercial Receivables as collateral for a loan;
(l) the legal name of the Seller is as such term is used set forth in Section 548 of 1 to this Agreement. Except as set forth in the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderExhibit C, the Seller has not used changed its name in the last six years and, during such period, the Seller did not use, and the Seller does not now use, any selection criteria that trade names, fictitious names, assumed names or "doing business as" names;
(m) each pension plan or profit sharing plan to which the Seller is a party has been fully funded in accordance with the obligations of the Seller set forth in such plan;
(n) the Seller is not a party to any unresolved disputes with any Obligor on a Commercial Receivable, without regard to whether the dispute with an Obligor involves a Commercial Receivable of the Seller which is offered for sale, or sold, to ACC under this Agreement, except as disclosed in writing to ACC;
(o) there are materially adverse to no pending civil or criminal investigations involving the Purchaser Seller or its assigneesofficers and directors and neither the Seller nor any of its officers or directors has been involved in, or the subject of, any civil or criminal investigation within the past five (5) years;
(p) the Seller has executed and delivered the applicable Obligor Notice to each Obligor, with executed copies thereof also delivered to ACC, of a Commercial Receivable sold to ACC hereunder;
(q) neither the federal government nor any other Person has asserted any claim or right to offset any liability or debt against any Governmental Receivable. The Seller has no overdue or delinquent liabilities or debt which could give rise to a right of the federal government or any other Person to offset such liabilities or debt against Governmental Receivables;
(r) the Seller has heretofore delivered to ACC true and complete copies of the financial statements each of which fairly presents the financial position of the Seller as of the date thereof and the results of operations and changes in financial condition of the Seller for the period then ended and has been prepared in accordance with generally accepted accounting principles consistently applied. The books of account and records of the Seller are true and complete in all material respects and fairly reflect all the material properties, assets, liabilities and transactions of the Seller in accordance with generally accepted accounting principles consistently applied. All fees, charges, costs and expenses of any nature whatsoever associated with the ownership, operation and management of the business and the assets have been in all material respects fully and properly charged and reflected in the books and records of the Seller and in the Seller's financial statements, and such books and records and financial statements do not, because of the provision of services or the bearing of costs and expenses by any other person or for any other reason, understate in any material respect the true costs and expenses of conducting the Seller's business; and
(s) all documents which have been or shall be delivered to ACC or filed with any governmental authority by or on behalf of the Seller pursuant to this Agreement or any other Seller Agreement or in connection with the transactions contemplated hereby are, of when so delivered or filed shall be, correct and complete in all material respects and, if applicable, in full force and effect.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge sole right or remedy of the Seller, threatened action or proceeding affecting the Seller or any Depositor with respect to a breach of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have such representation and warranty (other than a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller to of the Purchaser representations and warranties made pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between 1.04(b)(viii) hereof) shall be the Seller and right to enforce the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors obligations of the Seller. Each Transferor under such sale has been applicable representation or warranty made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderTransferor. To such extent, the Seller Transferor has not used any selection criteria that are materially adverse to acknowledged the Purchaser or Pooling Agreement and its assignees.duties and obligations under Section 2.03
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State jurisdiction indicated at the beginning of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunderthis Amendment.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) Amendment are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company action, (iii) corporate action and do not contravene (1i) the Seller's organizational documentscharter or by-laws, (2ii) any law, rule law or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunderAmendment.
(d) This Agreement Amendment constitutes the a legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending oror overtly threatened action, to the best knowledge of the Sellersuit, threatened action investigation, litigation or proceeding against or affecting the Seller or any of its Subsidiaries before Subsidiaries, or the property of the Seller or of any of its Subsidiaries, in any court, or before any arbitrator of any kind, or before or by any governmental agency or arbitrator which is reasonably likely to have a material adverse effectbody, except as disclosed in which, taking into account its probability of success, may materially adversely affect the financial statements condition the Seller or filings referred to in Section 4.01(lthe Seller and its Consolidated Subsidiaries taken as a whole (other than the litigation as described on Schedule A hereto (the "Current Litigation").
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect materially adversely affect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales ability of Receivables by the Seller to perform its obligations under this Amendment, or the Purchaser pursuant to this Purchase and Sale Agreement or the Parallel Purchase Agreement, and all other transactions between each as amended hereby; there has been no adverse change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the Current Litigation from that described on Schedule A hereto; neither the Seller and nor any of its Subsidiaries is in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the Purchaser, have been and will be made in good faith and without intent to hinder, delay business or defraud creditors operations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 Seller or any of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaserits Subsidiaries.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, carry on its business as presently conducted and enter into and perform its obligations under the Assignment Agreements and this Agreement;
(ii) the execution and delivery by the Seller of the State Assignment Agreements and this Agreement have been duly authorized by all necessary corporate action on the part of Virginiathe Seller; neither the execution and delivery of the Assignment Agreements or this Agreement, and is duly qualified to do business nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of the Assignment Agreements and this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated thereby and hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer each of the Seller's interest in the Sold Receivables pursuant to Assignment Agreements and this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment Agreements, and no notice to or filing withthe Depositor, any governmental authority or regulatory body is required to be obtained, taken, given or made by in the Seller for the due execution, delivery and performance by the Seller case of this Agreement or any other document to which it is Agreement, constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generallyof creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by the Assignment Agreements or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment Agreements or this Agreement.
(eb) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U The Seller represents and warrants upon delivery of the Board of Governors of Mortgage Loans to the Federal Reserve System of the United States of AmericaDepositor hereunder, as the same is from time to time in effecteach that, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).Closing Date:
(i) The principal place of business and chief executive office information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Seller Mortgage Loans, and the office information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Seller keeps its records or has access related Mortgaged Property is located pursuant to such records concerning insurance policies conforming to the Sold Receivables are located at requirements of the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place guidelines of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. If upon origination of the Mortgage Loan, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (TCLTC AGand such flood insurance has been made available), W.A. ▇▇▇▇▇ Company a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and Trans-Continental Leaf Tobacco Corporation SA.expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement;
(kiv) There are no actionsEach Mortgage has not been satisfied, suits cancelled, subordinated or other proceedings rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters relating of public record as of the date of recording of such Mortgage acceptable to environmental liabilitymortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Mortgage Loan, and (3) pending or threatened against or affecting the Sellersuch other matters to which like properties are commonly subject which do not, or any of its properties, that (i) if adversely determined (individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, may then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) No foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the financial condition value of the Seller related Mortgaged Property as security for the related Mortgage Loan or on the collectability of a material portion of use for which the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.premises were intended;
(lix) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of There are no mechanics’ or similar liens or claims which have been furnished filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the Purchaserrelated Mortgaged Property which are or may be liens prior to, fairly present or equal or coordinate with, the financial condition lien of the Seller related Mortgage;
(x) Each Mortgage Loan was originated by a savings and its consolidated Subsidiaries as at such date loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the results Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the operations National Housing Act;
(xi) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Seller Code and its consolidated Subsidiaries for Treas. Reg. §1.860G-2;
(xii) Each Mortgage Loan at the period ended on such datetime it was made complied in all material respects with applicable local, prepared on state and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Mortgage Loan secured by a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than Mortgaged Property located in New Jersey is a “High-Cost Home Loan” as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change defined in the businessNew Jersey Home Ownership Act effective November 27, operations, property or financial or other condition of the Seller 2003 (it being understood that N.J.S.A. 46:10B-22 et seq.); (ib) no Mortgage Loan secured by a change Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the debt ratings of the Seller does notNew Mexico Home Loan Protection Act effective January 1, in and of itself, constitute a material adverse change and 2004 (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-17h)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser, as followsof the Closing Date or, as applicable, as of each Subsequent Transfer Date (or if otherwise specified below, as of the date so specified):
(a) As to the Seller:
(ai) The Seller is a corporation national banking association duly organized and validly existing under the laws of the State United States of Virginia, America and is duly qualified in compliance with the laws of each state in which any Mortgaged Property is located to do business in every jurisdiction where the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.each Mortgage Loan;
(bii) The executionSeller has the power and authority to make, delivery execute, deliver and performance by the Seller of perform its obligations under this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This each Subsequent Transfer Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party and all of the transactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to be delivered by it hereunder.authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(diii) The Seller is not required to obtain the consent of any other Person or any consents, licenses, approvals or authorizations from, or registrations or declarations with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement or each such Subsequent Transfer Agreement, except for such consents, licenses, approvals or authorizations, or registrations or declarations, as shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer Agreement to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and each such Subsequent Transfer Agreement will not violate the Seller’s Articles of Association or Bylaws or constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the material breach of, any material contract, agreement or other instrument to which the Seller is a party or which may be applicable to the Seller or any of its assets;
(v) There are no pending or, to the best of the Seller's knowledge, threatened, actions, suits, proceedings or investigations before any court, tribunal, administrative agency, arbitrator or governmental body that, if decided adversely, would materially and adversely affect (A) the condition (financial or otherwise), business or operations of the Seller, (B) the ability of the Seller to perform its obligations under, or the validity or enforceability of, the Basic Documents to which it is a party or (C) the transactions contemplated by this Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to which it is a party constitutes the a legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), and by public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the Purchaser of all right, title and interest of the Seller in and to the Initial Mortgage Loans, including the Cut-Off Date Principal Balances now existing and all Additional Balances thereafter arising to and including the day immediately preceding the Rapid Amortization Period, all monies due or to become due with respect thereto, and all proceeds of such Cut-Off Date Principal Balances with respect to the Initial Mortgage Loans; and this Agreement and the related Subsequent Transfer Agreement, when executed and delivered, will constitute a valid transfer and assignment to the Purchaser of all right, title and interest of the Seller in and to the Subsequent Mortgage Loans, including the Cut-Off Date Principal Balances of the Subsequent Mortgage Loans, all monies due or to become due with respect thereto, and all proceeds of such Cut-Off Date Principal Balances and nothing has been done by the Seller to impair the rights of the Purchaser, the Trustee, the Paying Agent, the Enhancer or the Securityholders with respect thereto; and
(viii) 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 governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially adversely affect its performance hereunder.
(b) As to each Initial Mortgage Loan (except as otherwise specified below) as of the Closing Date, or as to each Subsequent Mortgage Loan (except as otherwise specified below) as of the related Subsequent Transfer Date:
(i) The information pertaining to each Mortgage Loan set forth in the Mortgage Loan Schedule delivered by the Seller was true and correct in all material respects as of the date or dates respecting which such information is initially furnished;
(ii) Each Mortgaged Property is improved by a residential dwelling, which, to the best of the Seller’s knowledge, does not constitute property other than real property under state law;
(iii) Each Mortgage Loan is being serviced by the Seller and there was only one originally executed Loan Agreement not stamped as a duplicate copy with respect to each such Mortgage Loan;
(iv) The Loan Agreement with respect to each Mortgage Loan bears an adjustable Loan Rate;
(v) Immediately prior to the transfer and assignment herein contemplated or under the related Subsequent Transfer Agreement, as applicable, the Seller held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Seller subject to no liens (other than, with respect to any Mortgage Loan in a (A) second lien position, the lien of the related first mortgage and (B) third lien position, the lien of the related first mortgage and the related second mortgage), charges, mortgages, encumbrances or rights of others or other liens which will not be released simultaneously with such transfer and assignment and has full right and authority, under all governmental and regulatory bodies having jurisdiction over the ownership of the applicable Mortgage Loans to sell and assign the same pursuant to this Agreement or the related Subsequent Transfer Agreement, as applicable;
(vi) To the best of the Seller’s knowledge, there is no delinquent recording or other tax or fee or assessment lien on any Mortgaged Property, and each Mortgaged Property is free of material damage and is in good repair;
(vii) No Mortgage Loan is subject to any right of rescission, valid set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Loan Agreement or the Mortgage relating to any Mortgage Loan, or the exercise of any right thereunder, render either such Loan Agreement or such Mortgage unenforceable in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(viii) To the best of the Seller’s knowledge, each Mortgage Loan at the time it was made and the related Loan Agreement complied in all material respects with applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure, recording and all applicable anti-predatory lending laws;
(ix) A policy of hazard insurance and flood insurance, if applicable, was required from the Mortgagor for the Mortgage Loan when the Mortgage Loan was originated;
(x) Each Mortgage Loan and each Loan Agreement is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the enforcement of creditors’ rights generally.generally and by general principles of equity (whether considered in a proceeding or action in equity or at law);
(exi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994. Furthermore, no Mortgage Loan either currently has, or in the future will have, single premium life provisions as part of the Loan Agreement;
(xii) Each Receivable sold hereunder is Initial Mortgage Loan has an Eligible Receivable.associated CLTV of no higher than 100%;
(fxiii) No proceeds of any Purchase will be used, directly There is no proceeding pending or indirectly by the Seller, threatened for the purpose, whether immediate, incidental total or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U partial condemnation of the Board of Governors Mortgaged Property, nor is such a proceeding currently occurring;
(xiv) The related Loan Agreement is not and has not been secured by any collateral, pledged account or other security except the lien of the Federal Reserve System corresponding Mortgage;
(xv) With respect to each Initial Mortgage Loan and Subsequent Mortgage Loan, as applicable, the related Mortgage File contains or will contain each of the United States of America, as the same is from time documents and instruments specified to time in effect, and all official rulings and interpretations thereunder or thereof.be included therein;
(gxvi) Sales of Sold Receivables by the Seller pursuant With respect to this Agreement will constitute each Mortgage Loan that is not a valid salefirst mortgage loan, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
either (i) The principal place of business and chief executive office no consent for the Mortgage Loan is required by the holder or holders of the Seller related prior lien, (ii) such consent has been obtained and is contained in the office where related Mortgage File or (iii) no consent for the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.Mortgage Loan was required by relevant law;
(jxvii) The Seller Mortgaged Property is not known by located in the state identified in the Mortgage Loan Schedule and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.consists of a single parcel of real property with a residential dwelling erected thereon;
(kxviii) There are no actionsThe related Mortgage contains customary and enforceable (subject to clause (x)) provisions which render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Sellerincluding, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability case of a material portion Mortgage designated as a deed of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any ordertrust, rule or regulation of any governmental authorityby trustee’s sale, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) otherwise by judicial foreclosure. There is no pending or, homestead or other exemption available to the Mortgagor which would materially interfere with the right to sell the Mortgaged Property at a trustee’s sale or the right to foreclose the Mortgage;
(xix) To the best knowledge of the Seller’s knowledge, threatened action there is no default, breach, violation or proceeding event of acceleration existing under the Mortgage or the related Loan Agreement and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(xx) At origination, each Initial Mortgage Loan has a draw period of not less than 36 months;
(xxi) The Loan Agreement with respect to each Initial Mortgage Loan bears an adjustable Loan Rate with an index plus a margin that equals a rate per annum of no less than Prime minus ____%;
(xxii) To the best of the Seller’s knowledge, there are no mechanics’ or similar liens or claims which have been filed for work, labor or material affecting the Seller related Mortgaged Property which are, or any may be liens prior or equal to the lien of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effectthe related Mortgage, except as disclosed in the financial statements or filings liens which are fully insured against by a title insurance policy referred to in Section 4.01(l).clause (xxiv) below;
(nxxiii) No transaction contemplated hereby requires compliance with any bulk sales act As of the Cut-Off Date or similar law.the related Subsequent Cut-Off Date, as applicable, no Mortgage Loan was 30 days or more delinquent in payment of principal or interest or the subject of a bankruptcy proceeding;
(oxxiv) All financing statements A title search or other assurance of title customary in the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each original Mortgage was recorded, and all subsequent assignments of the original Mortgage required to be delivered to the Servicer pursuant to Section 2.1 have been recorded in the appropriate jurisdictions wherein such recordation is necessary in order to perfect the Purchaser's ownership interest lien thereof (or are in the Receivables have been prepared and filed.process of being recorded in accordance with local law);
(pxxvi) The sales of Receivables by Seller has not transferred the Seller Mortgage Loans to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without with any intent to hinder, delay or defraud creditors any of its creditors;
(xxvii) No selection procedure reasonably believed by the Seller to be adverse to the interests of the Securityholders was utilized in selecting the Mortgage Loans;
(xxviii) The Minimum Monthly Payment with respect to any Mortgage Loan is not less than the interest accrued at the applicable Loan Rate on the average daily Principal Balance during the interest period relating to the date on which such Minimum Monthly Payment is due;
(xxix) The Seller has not received a notice of default of any senior mortgage loan related to a Mortgaged Property which has not been cured by a party other than the Seller. Each such sale ;
(xxx) No instrument of release or waiver has been made for executed in connection with the Mortgage Loans, and no Mortgagor has been released, in whole or in part, from its obligations in connection therewith;
(xxxi) Each Mortgage Loan has been originated by the Seller in compliance in all material respects with the Seller’s internal underwriting policies as in effect on the date of origination of such Mortgage Loan;
(xxxii) Other than provisions relating to “reasonably equivalent valuepromotional Finance Charges” and “promotional advances,” as each such term is used in the related Loan Agreements, or any similar terms used in any of the related Loan Agreements, there are no provisions in any of the related Loan Agreements that would interfere with the allocation provisions of the second sentence of Section 2.4;
(xxxiii) No “promotional advances,” as such term is used in Section 548 the related Loan Agreements or any other similar type of advance that would be entitled to an allocation of payment other than by application in chronological order (except with respect to Liquidation Loss Amounts and Subsequent Recovery Amounts) will be extended under any Mortgage Loan after the date on which the Rapid Amortization Period commences;
(xxxiv) None of the United States Bankruptcy CodeLoan Agreements that constitute or evidence the Mortgage Loans has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Purchaser;
(xxxv) No Mortgage Loan is a “high cost loan” or “covered loan” as applicable (as such terms are defined in Standard & Poor’s LEVELS® Glossary, Version 5.6 Revised, Appendix E, attached hereto as Exhibit 6) and not for no Mortgage Loan originated on or on account of “antecedent debt”(as such term used in Section 547 after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act”
(xxxvi) Reserved;
(xxxvii) As of the United States Bankruptcy Code) owed by Cut-Off Date, the Seller to minimum CLTV of a Mortgage Loan is ___%, the Purchaser.highest CLTV of a Mortgage Loan is ___% and the weighted average CLTV for the Mortgage Loans is approximately ___%;
(qxxxviii) In selecting As of the Eligible Receivables to be sold hereunderCut-Off Date, no more than approximately ___% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties which may have been appraised using a statistical property evaluation method provided by CASA®;
(xxxix) As of the Cut-Off Date, no more than approximately ___% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties which may have been appraised using a statistical property evaluation method provided by vendors other than CASA;
(xl) As of the Cut-Off Date, the Seller has not used any selection criteria that Loan Rates on the Mortgage Loans range between ___% per annum and ___% per annum. As of the Cut-Off Date, the weighted average Loan Rate for the Mortgage Loans is approximately ___% per annum;
(xli) As of the Cut-Off Date, no more than approximately ___%, ___%, ___%, ___% and ___% of the Mortgage Loans, by Cut-Off Date Principal Balance, are materially adverse to secured by Mortgaged Properties located in the Purchaser states of _______, _______, _______, _______ and _______, respectively;
(A) Each Mortgaged Property consists of a single parcel of real property with a single family or its assignees.multi-family residence erected thereon, or an individual condominium unit or agricultur
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Mortgage Loan Trust, LLC)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized and formed, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except where unless the failure to so qualify would not be likely have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to materially adversely affect the Purchaser's rights perform their respective obligations hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's ’s sale of Receivables hereunder and the Seller's ’s use of the proceeds of Purchases, (i) are within the Seller's ’s limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) do not contravene (1) the Seller's ’s organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's ’s interest in the Sold Transferred Receivables pursuant to this Agreement). This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document the Transaction Documents to which it is a party or any other document to be delivered by it hereunderthereunder except for the filing of financing statements which are referred to therein.
(d) This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting creditor's the enforcement of creditors’ rights generallygenerally and general principles of equity, whether considered in an action at law or equity).
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened, action, investigation or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effect.
(h) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, (ii) to acquire any security in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates applicable law, including Regulation G or U of the Federal Reserve Board.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized in any Seller Report or other written statement made by or on behalf of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, as of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, together with the Related Security or Collections. Immediately Security, is owned (immediately prior to the its sale of each Sold Receivable hereunder, ) by the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Transferred Receivable and the Related Security and the Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken or not taken by the SellerPurchaser), and no effective financing statement or other instrument similar in effect covering any Sold Transferred Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of Von Duprin in accordance with the Initial Purchase Agreement, in favor of the Seller in accordance with the Secondary Purchase Agreement, in favor of Purchaser in accordance with this Agreement Agreement, or in connection with any Adverse Claim arising solely as the result of any action taken by the Purchaser. Nothing in this Section 4.01(j) shall constitute a representation or on behalf warranty by the Seller as to the priority, as against any other secured creditors of the Purchaserrelevant Obligor, of any Underlying Inventory Security Interest.
(hk) All Each Seller Report (if prepared by the Seller, or to the extent that information and each reportcontained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances)furnished.
(il) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Transferred Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business Seller has not changed within its name during the past 12 monthstwo years prior to the date of this Agreement.
(jm) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit B (as the same may be updated from time to time pursuant to Section 5.01(g)). The Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remitted, except as expressly permitted pursuant to the terms of Section 5.01(h) hereof.
(n) None of the Seller or any Originator is not known by and does not use or uses any registered tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements With respect to any programs used in the servicing of the Receivables, no sublicensing agreements are necessary in order connection with the designation of a new Collection Agent pursuant to perfect Section 6.01 so that such new Collection Agent shall have the Purchaser's ownership interest in benefit of such programs (it being understood that, however, the Receivables have been prepared and filedCollection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to the applicable Originator), except for those programs licensed from Persons which are not affiliated with the applicable Originator which by the express terms of such license either (i) require the consent of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sales sale of Transferred Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns, and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).
(r) The Seller is not, and is not controlled by, an “investment company” within the meaning of the Investment Company Act of 1940, or is exempt from all provisions of such act.
(s) The receivables credit and collection policies and practices of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Each Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreement.
(t) No event or circumstance has occurred since the date of this Agreement that has a Material Adverse Effect.
(u) With respect to each Transferred Receivable, the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution to the capital of the Seller by Von Duprin or (ii) shall have purchased such sale has been Transferred Receivable from Von Duprin in exchange for payment (made for “by the Seller to Von Duprin in accordance with the provisions of the Secondary Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value” , and each such sale referred to in the foregoing clause (as such term is used in Section 548 of the United States Bankruptcy Codeii) and shall not have been made for or on account of “an antecedent debt”(as debt owed by Von Duprin to the Seller and no such term used in Section 547 sale is or may be voidable or subject to avoidance under any section of the United States Federal Bankruptcy Code) owed by the Seller to the Purchaser.
(qv) In selecting Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Eligible Receivables to be sold hereunderInvestment Company Act of 1940, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assigneesas amended.
Appears in 1 contract
Sources: Tertiary Purchase Agreement (Ingersoll Rand Co LTD)
Representations and Warranties of the Seller. On The Seller represents and warrants to the Buyer, as of the date hereof and as of the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as followsthat:
(a) The execution, delivery and performance by the Seller is of this Agreement, and the consummation of the transactions contemplated hereby are within the powers of the Seller and have been or will have been duly authorized by all necessary action on the part of the Seller, and that this Agreement constitutes a corporation duly organized valid and validly existing under binding agreement of the Seller, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement or creditors’ rights generally or (ii) as limited by laws relating to the State availability of Virginiaspecific performance, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualifiedinjunctive relief, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunderor other equitable remedies.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any transactions contemplated hereby require no order, writlicense, judgmentconsent, awardauthorization or approval of, injunction or decree binding exemption by, or action by or in respect of, or notice to, or filing or registration with, any governmental body, agency or official on or affecting the Seller or its property, and (iv) do not result in or require the creation part of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due The execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date Buyer of this Agreement, other than as publicly disclosed and the consummation of the transactions contemplated by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that do not and will not (i) a change in violate the debt ratings certificate of the Seller does not, in and of itself, constitute a material adverse change and incorporation or bylaws (iior similar constituent documents) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action (ii) violate any material agreement to which the Seller is a party or proceeding affecting by which the Seller or any of its Subsidiaries before property or assets is bound, or (iii) violate any courtlaw, governmental agency rule, regulation, judgment, injunction, order or arbitrator which is reasonably likely decree applicable to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Seller.
(nd) No transaction The Seller is the beneficial owner of the Securities and upon the consummation of the transactions contemplated hereby requires compliance with any bulk sales act hereby, the Buyer will receive the Securities free and clear of all encumbrances, liens, equities or similar lawclaims created by the Seller.
(oe) All financing statements necessary in order There is no investment banker, broker, finder or other intermediary which has been retained by, will be retained by or is authorized to perfect act on behalf of the Purchaser's ownership interest in Seller who might be entitled to any fee or commission from the Receivables have been prepared and filedBuyer upon consummation of the transactions contemplated by this Agreement.
(pf) The sales Seller (i) either alone or together with its representatives, has such knowledge and experience in financial, business and tax matters as to be capable of Receivables evaluating the merits and risks of the transactions contemplated by this Agreement and to make an informed decision to sell the Securities, and has so evaluated the risks and merits of such sale, and (ii) has had the opportunity to review the reports filed by the Buyer with the Securities and Exchange Commission (“SEC”). Notwithstanding the foregoing, the Seller to acknowledges that the Purchaser pursuant to Buyer has made no representations, warranties or covenants regarding the Buyer or the Securities that are not reflected in this Agreement, .
(g) The Seller acknowledges that this Agreement is the result of individual negotiations between the Buyer and all other transactions between the Seller and that the Purchaser, have been and will Buyer may be made in good faith and without intent to hinder, delay negotiations with other holders of its 8.50% Convertible Senior Notes due 2026 which may be on the same or defraud creditors of different terms than the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed terms contemplated by the Seller to the Purchaserthis Agreement.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Note Repurchase Agreement (Hutchinson Technology Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge sole right or remedy of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller to of such representation and warranty (other than a breach by the Purchaser Seller of the representations and warranties made pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and the Purchaser, have been and will 1.04(b)(viii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 The Depositor acknowledges and agrees that the representations and warranties of the United States Bankruptcy CodeSeller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not for constitute a breach of any representation or on account warranty made by the Transferor in the Transfer Agreement or Bring Down Letter. The Seller shall have no obligation or liability with respect to any breach of “antecedent debt”(as a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such term used breach also constitutes a breach of a representation or warranty made by the Transferor in Section 547 the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the United States Bankruptcy Code) owed Transfer Agreement and the Bring Down Letter by substituting for the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderaffected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller has not used any selection criteria that are materially adverse shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the Purchaser foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of October 29, 2004:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or its assigneesdates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller is a corporation an aktiengesellschaft duly organized and validly existing under the laws of the State of VirginiaSwitzerland, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Alliance One International, Inc.)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants as followsto the Owner Trustee and the Note Insurer that:
(a) The Seller is a corporation duly organized and validly existing as a corporation in good standing under the laws of the State of VirginiaDelaware, with power and is duly qualified authority to do business in every jurisdiction where the nature of own its properties and to conduct its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunderas such properties are currently owned and such business is presently conducted.
(b) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to transfer and assign the property to be transferred and assigned to and deposited with the Trust and the Seller has duly authorized such transfer and assignment and deposit to the Trust by all necessary corporate action; and the execution, delivery and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(c) The consummation of the transactions contemplated by this Agreement and the other documents to be delivered by it hereunderfulfillment of the terms hereof do not conflict with, including result in any breach of any of the terns and provisions of, or constitute (with or without notice or lapse of time) a default under, the articles of incorporation or by-laws of the Seller's sale , or any indenture, agreement or other instrument to which the Seller is a party or by which it is bound; nor result in the creation or imposition of Receivables hereunder and any lien upon any of its properties pursuant to the Seller's use terns of any such indenture, agreement or other instrument (other than pursuant to the proceeds of PurchasesBasic Documents); nor violate any law or, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any laworder, rule or regulation applicable to the SellerSeller of any court or of any Federal or state regulatory body, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on administrative agency or affecting other governmental instrumentality having jurisdiction over the Seller or its property properties.
(d) There are no proceedings or (4) investigations pending or notice of which has been received in writing before any ordercourt, writregulatory body, judgment, award, injunction administrative agency or decree binding on or affecting other governmental instrumentality having jurisdiction over the Seller or its propertyproperties: (x) asserting the invalidity of this Agreement, and (ivy) do not result in or require seeking to prevent the creation consummation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in transactions contemplated by this Agreement or (z) seeking any determination or ruling that should reasonably be expected to materially and adversely affect the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement or any other document to which it is a party to be delivered by it hereunderAgreement.
(de) This The representations and warranties of the Seller in Article III of the Sale and Servicing Agreement are true and correct.
(f) The Seller has duly executed and delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller Seller, in accordance with its terms, subject to except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the enforcement of creditors' rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly generally and by the Seller, for the purpose, whether immediate, incidental or ultimate, application of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofequitable principles.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default with respect to any order or decree of any contractual obligation court or in violation of any order, rule regulation or regulation demand of any federal, state, municipal or other governmental authorityagency, which default might have consequences that would materially and adversely affect the condition (financial or violation may have a material adverse effect upon (iotherwise) the financial condition or operations of the Seller or (ii) the insurance of any Eligible Receivables under the Policyits properties or might have consequences that would materially and adversely affect its performance hereunder.
(lh) The balance sheets Seller will hold itself out to the public under its own name as a separate and distinct entity and conduct its business so as not to mislead others as to the identity of the entity under which those others are concerned. Without limiting the generality of the foregoing, all oral and written communications, including without limitations, all letters, invoices, contracts, statements and applications will be made solely in the name of the Trust if they are made on behalf of the Trust and solely in the name of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended if they are made on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge behalf of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Trust Agreement (Accredited Home Lenders Accredited Mort Loan Trust 2002-2)
Representations and Warranties of the Seller. On The Seller hereby makes to and for the Closing Date, as well as on benefit of the Purchaser each Purchase Date, of the Seller represents following representations and warrants as followswarranties:
(ai) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of Virginia[______________] and has the power to own its property and to conduct its business as it is presently owned and as such business is presently conducted;
(ii) The Seller is neither required to qualify nor to register as a foreign corporation in any state in order to conduct its business, and is duly qualified not required under federal or state law to do obtain any licenses or approvals with respect to such business except such as have been obtained prior to the Closing Date;
(iii) The Seller has the power and authority to make, execute, deliver and perform its obligations under this Agreement and all of the transactions contemplated under this Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement;
(iv) The Seller is not required to obtain the consent of any other party or any consent, license, approval or authorization from, or registration or declaration with, any governmental authority, bureau or agency in every jurisdiction where connection with the nature execution, delivery, performance, validity or enforceability of its business requires it to be so qualifiedthis Agreement, except where failure such as have been obtained or filed, as the case may be, prior to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.Closing Date;
(bv) The execution, delivery and performance of this Agreement by the Seller will not violate or conflict with any provision of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule existing law or regulation or any order or decree of any court applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property any provision of the [Certificate of Incorporation] [Articles of Incorporation] [Articles of Association] or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer By-laws of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization , or approval constitute a material breach of any mortgage, indenture, contract or other action by, and no notice agreement to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by which the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to or by which the Seller may be delivered by it hereunder.bound;
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kvi) There are no actions, suits proceedings or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no investigations pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries threatened, before any court, regulatory body, administrative agency, arbitrator or other tribunal or governmental agency instrumentality (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, (iii) seeking any determination or arbitrator which is reasonably likely to have a material adverse effectruling that, except as disclosed in the financial statements reasonable judgment of the Seller, would materially and adversely affect the transactions contemplated by this Agreement or filings referred the performance by the Seller of its obligations under this Agreement, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement, (v) seeking to in Section 4.01(l).affect adversely the Federal income tax attributes of the Trust, or (vi) seeking to impose any tax upon the Seller as a result of the sale of the Mortgage Loans pursuant to this Agreement; and
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(pvii) The sales Seller is not insolvent and will not be insolvent following the consummation on the Closing Date of Receivables the transactions contemplated by this Agreement and has not entered into such transactions, including the transfer by the Seller to the Purchaser pursuant of the property specified in Section 1, in contemplation of insolvency or with a view to hindering its creditors. The representations and warranties set forth in this Agreement, and all other transactions between Section 3 shall survive the Seller sale of the Mortgage Loans to the Purchaser and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors transfer of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 Mortgage Loans by the Purchaser to the Trust and the delivery of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of Mortgage Files to the United States Bankruptcy Code) owed Trustee. Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof to the Purchaserother party.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (J P Morgan Acceptance Corp I)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller -------------------------------------------- represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State jurisdiction of Virginia, its incorporation and is duly qualified to do business business, and is in every jurisdiction good standing, in all states where the nature of its business or the ownership or use of property requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereundersuch qualification.
(b) The execution, delivery and performance by the Seller of this Agreement Agreement, the Ownership Document and all other instruments and documents delivered by the Seller hereunder, and the other documents to be delivered by it hereundertransactions contemplated hereby and thereby, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1i) the Seller's organizational documentsArticles of Incorporation or Bylaws, (2ii) law or (iii) any lawprovision of any loan or credit agreement, rule indenture, mortgage, deed of trust, security agreement or regulation applicable similar agreement to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting which the Seller is a party or by which its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its propertymay be bound, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (properties, except for as contemplated by this Agreement or the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed Ownership Document; and delivered by the Sellerno transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval of, or other action by, and no application or notice to or filing with, any governmental authority or regulatory body entity including, without limitation, the Public Service Commission of Wisconsin, the Minnesota Public Utilities Commission, the Illinois Commerce Commission, the Federal Energy Regulatory Commission and the Securities and Exchange Commission is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement Agreement, the Ownership Document or any other document to which it is a party or instrument to be delivered by it hereunderhereunder except for (i) the filing of such UCC Financing Statements, naming the Seller as the seller of Receivables and the Purchaser as the purchaser of Receivables, as may be necessary or, in the opinion of the Purchaser, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the ownership interests in all Receivables purchased from the Seller hereunder and (ii) the approval of the Public Service Commission of Wisconsin, the Minnesota Public Utilities Commission, the Illinois Commerce Commission and the Securities and Exchange Commission, all of which, at the time required in Section 3.01, shall have been duly made and shall be in full force and effect.
(d) This Agreement constitutes constitutes, and the Ownership Document when delivered hereunder shall constitute, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects balance sheet as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 20111999, and the related statements of --------- income and retained earnings and cash flows of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, each as certified by the Seller's independent public accountants, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at of the date of such date balance sheet and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such daterespective periods covered by said statements of income and retained earnings. Since , prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement1999, there ---------- has been no material adverse change in the businessfinancial condition or operations of the Seller.
(i) There are no actions, operationssuits or proceedings pending, property or financial or other condition to the knowledge of the Seller (it being understood that (i) a change in threatened, against or affecting the debt ratings Seller or any subsidiary, or the property of the Seller does notor of any subsidiary, in and any court, or before any arbitrator of itselfany kind, constitute a material adverse change and or before or by any governmental body, which, if determined adversely to the Seller, would materially adversely affect the financial condition or operations of the Seller or the ability of the Seller to perform its obligations under this Agreement or the Ownership Document; (ii) there is no pending or threatened litigation which purports to affect the legality, validity or enforceability of this representation Agreement or any transaction contemplated hereby or which seeks to enjoin or challenge any proposed use of the proceeds of the Purchases hereunder; (iii) the Seller is made only as not in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of the Seller; and (iv) at the date of this Agreement, no amendment or supplement to the Seller's Annual Report on Form 10-K for the year ended December 31, 1998, or the Seller's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999, June 30, 1999, and September 30, 1999, has been filed with the Securities and Exchange Commission.
(g) No proceeds of any Purchase will be used (i) for a purpose which violates, or would be inconsistent with, regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time or (ii) to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(i) The Receivables Pool is composed solely of Eligible Receivables, except for such Receivables as shall not, in the aggregate, constitute a material portion of the Receivables Pool; and (ii) upon each Purchase, the Purchaser will acquire a valid and perfected first priority ownership interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto free and clear of Adverse Claims; and no effective financing statement or other instrument similar in effect covering any Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office, except those filed in favor of the Purchaser and the Agent in accordance with this Agreement, the ▇▇▇▇▇▇ Agreement and the Citibank Agreement.
(i) Each Investor Report (if prepared by the Seller or Services, or to the extent that information contained therein is supplied by the Seller or Services), information, exhibit, financial statement, document, book, record or report furnished at any time by the Collection Agent to the Purchaser in connection with this Agreement or to the Agent or any Owner in connection with the ▇▇▇▇▇▇ Agreement or the Citibank Agreement is accurate in all material respects as of its date and (except as otherwise disclosed to the Purchaser, the Agent or such Owner, as the case may be, at or prior to the time furnished) as of the date so furnished, and no such document contains, as of its date or (except as otherwise disclosed to the Purchaser, the Agent or such Owner, as the case may be, at or prior to the time furnished) as of the date so furnished, any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(j) The chief place of business and chief executive office of the Seller are located at , and the offices ------------------------------------ where the Seller keeps all its books, records and documents evidencing Pool Receivables or the related Contracts are located at , or at other local offices within the ---------------------------------- State of . ---------
(k) The Pool Receivables are accounts receivable representing all or part of the sale price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended; the nature of the Pool Receivables is such that their purchase with the proceeds of notes would constitute a "current transaction" within the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended.
(l) The Joint Expenses Ratio is not in excess of 25%.
(m) There The Seller is no pending orfamiliar with the representations and warranties made by the Purchaser in Section 4.01 of the NewCo Agreement and the representations and warranties made by Alliant Energy SPE in Section 4.01 of the ▇▇▇▇▇▇ Agreement and hereby warrants that it has taken, and has caused each other member of the Parent Group to take, all actions required on their respective parts to maintain the best knowledge of Purchaser's existence as an entity separate from the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except and Alliant Energy SPE's existence as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between an entity separate from the Seller and the Purchaser, have been and will be made to ensure that the other representations and warranties set forth in good faith each such Section 4.01 are true and without intent to hinder, delay or defraud creditors of correct. The Seller acknowledges that Alliant Energy SPE and the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller other parties to the ▇▇▇▇▇▇ Agreement and the Citibank Agreement are relying on the Purchaser's, and Alliant Energy SPE's, separate existence in entering into the transactions evidenced hereby and thereby.
(qn) In selecting The Purchaser has been capitalized with sufficient capital for the Eligible Purchaser's business and the Purchaser's net worth is equal to or greater than zero.
(o) The Purchase Price for the Pool Receivables to be sold hereunderconstitutes fair consideration and approximates fair market value for such Pool Receivables, and the Seller has not used any selection criteria that are materially adverse to terms and conditions of the Purchaser or its assigneessale of the Pool Receivables reasonably approximates an arm's-length transaction between unaffiliated parties.
Appears in 1 contract
Representations and Warranties of the Seller. On The Seller hereby represents, warrants and covenants to the Closing Date, as well as on each Purchase DateTrustee, the Seller represents Depositor, the Servicers , the Master Servicer and warrants the Owners as of the Startup Day as follows:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of Virginia, governing its creation and existence and is duly qualified to do business in every good standing as a foreign corporation in each jurisdiction where in which the nature of its business, or the properties owned or leased by it make such qualification necessary. The Seller has all requisite corporate power and authority to own and operate its properties, to carry out its business requires it as presently conducted and as proposed to be so qualified, except where failure conducted and to so qualify would not be likely enter into and discharge its obligations under the Operative Documents to materially adversely affect the Purchaser's rights hereunderwhich it is a party.
(b) The execution, execution and delivery and performance by the Seller of this Agreement and its performance and compliance with the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use terms of the proceeds of Purchases, (i) are within the Seller's powers, (ii) Operative Documents to which it is a party have been duly authorized by all necessary company action, (iii) do corporate action on the part of the Seller and will not contravene (1) violate the Seller's organizational documentscertificate of incorporation or bylaws or constitute a default (or an event which, (2with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any lawmaterial contract, agreement or other instrument to which the Seller is a party or by which the Seller is bound or violate any statute or any order, rule or regulation applicable to the Sellerof any court, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on governmental agency or affecting body or other tribunal having jurisdiction over the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerproperties.
(c) No authorization or approval or other action byEach Operative Document to which the Seller is a party, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionother parties hereto and thereto, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legalvalid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its termsthe terms hereof and thereof, subject to except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's creditors' rights generallygenerally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) 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 governmental agency, which default would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or the consequences of which would materially and adversely affect its performance under the Operative Documents to which the Seller is a party.
(e) Each Receivable sold hereunder No litigation is an Eligible Receivablepending with respect to which the Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller, which litigation might have consequences that would prohibit its entering into this Agreement or any other Operative Documents to which it is a party or that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance under the Operative Documents to which the Seller is a party.
(f) No proceeds certificate of any Purchase will an officer, statement furnished in writing or report delivered or to be used, directly or indirectly delivered pursuant to the terms hereof by the SellerSeller contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary to make the certificate, for the purpose, whether immediate, incidental statement or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofreport not misleading.
(g) Sales of Sold Receivables by The statements contained in the Registration Statement which describe the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, matters or activities for which the Seller is responsible in accordance with the legal Operative Documents or which are attributable to the Seller therein are true and beneficial owner correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to the Seller required to be stated therein or necessary to make the statements contained therein with respect to the Seller, in light of the circumstances under which they were made, not misleading. There is no fact known to the Seller that materially adversely affects or in the future may (so far as the Seller can now reasonably foresee) materially adversely affect the Seller or the Mortgage Loans or the ownership interests therein represented by the Certificates that has not been set forth in the Registration Statement.
(h) Upon the receipt of each Mortgage Loan (including the related Note) and other items of the Trust Estate by the Trustee under this Agreement, the Trust will have good title to such Sold Receivable, Mortgage Loan (including the related Note) and such other items of the Trust Estate free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result lien, charge, mortgage, encumbrance or rights of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances)others.
(i) The principal place All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of business the Certificates and chief executive office the execution, delivery and performance by the Seller of the Operative 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 the other Operative Documents on the part of the Seller and the office where performance by the Seller keeps of its records or has access obligations under this Agreement and such of the other Operative Documents to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 monthswhich it is a party.
(j) The Seller is not known transactions contemplated by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAthe Operative Documents are in the ordinary course of business of the Seller.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default insolvent, nor will it be made insolvent by the transfer of the Mortgage Loans, nor is it aware of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policyinsolvency pending.
(l) The balance sheets transfer, assignment and conveyance of the Seller and its consolidated Subsidiaries as at December 31, 2011, Notes and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed Mortgages by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior hereunder are not subject to the date of this Agreement, there has been no material adverse change bulk transfer laws or any similar statutory provisions in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change effect in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)any applicable jurisdiction.
(m) There The Seller is no pending or, not aware that any Mortgage Loan breaches any representation or warranty hereof or in the Ameriquest Transfer Agreement that as of the Startup Date is not subject to cure. It is understood and agreed that the representations and warranties set forth in this Section 3.03 shall survive delivery of the respective Mortgage Loans to the best knowledge Trustee. Upon discovery by any of the SellerServicers, threatened action or proceeding affecting the Master Servicer, the Depositor, the Seller or the Trustee (each, for purposes of this paragraph, a "party") of a breach of any of the representations and warranties set forth in this Section 3.03 which materially and adversely affects the interests of the Owners, the party discovering such breach shall give prompt written notice to the other parties. The Seller hereby covenants and agrees that within 60 days of its Subsidiaries before discovery or its receipt of notice of breach, it shall cure such breach in all material respects or, with respect to a breach of clause (h) above, it shall on the Monthly Remittance Date next succeeding such discovery or receipt of notice (i) within two years of the Startup Day, substitute in lieu of any courtMortgage Loan not in compliance with clause (h) a Qualified Replacement Mortgage and, governmental agency if the outstanding principal amount of such Qualified Replacement Mortgage as of the applicable Subsequent Cut-Off Date is less than the Loan Balance of such Mortgage Loan as of such Subsequent Cut-Off Date, deliver an amount equal to such difference together with the aggregate amount of (A) all unreimbursed Delinquency Advances and Servicing Advances theretofore made with respect to such Mortgage Loan and (B) the interest portion of any Delinquency Advances which the related Servicer has theretofore failed to remit with respect to such Mortgage Loan (a "Substitution Amount") to the related Servicer for deposit in the related Principal and Interest Account or arbitrator (ii) purchase such Mortgage Loan from the Trust at the Loan Purchase Price, which purchase price shall be delivered to the related Servicer for deposit in the Principal and Interest Account. Notwithstanding any provision of this Agreement to the contrary, with respect to any Mortgage Loan which is reasonably likely not in default or as to have a material adverse effectwhich no default is imminent, except as disclosed in the financial statements no repurchase or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by substitution pursuant hereto shall be made unless the Seller obtains for the Trustee an opinion of counsel experienced in federal income tax matters to the Purchaser effect that such a repurchase or substitution would not constitute a Prohibited Transaction for the Trust or any REMIC therein or otherwise subject the Trust or any REMIC therein to tax and would not jeopardize the status of either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC (a "REMIC Opinion") addressed to the Servicers, the Master Servicer and the Trustee and acceptable to the Servicers, the Master Servicer and the Trustee. Any Mortgage Loan as to which repurchase or substitution was delayed pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors Section because of the Seller. Each inability to deliver a REMIC Opinion shall be repurchased or substituted for (subject to compliance with Sections 3.03, 3.04 or 3.06, as the case may be) upon the earlier of (a) the occurrence of a default or imminent default with respect to such sale has been made for “reasonably equivalent value” Mortgage Loan and (as such term is used in Section 548 of the United States Bankruptcy Codeb) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed receipt by the Seller to the PurchaserTrustee of a REMIC Opinion.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1998-2)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of VirginiaNew Jersey, and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, qualified except where the failure to be so qualify qualified would not be likely to materially adversely affect have a material adverse effect on the Purchaser's rights hereundercollectibility of the Transferred Receivables or on the Seller.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company actioncorporate action on the part of the Seller, (iii) do not contravene (1A) the Seller's organizational documentscharter or by-laws, (2B) any law, rule or regulation applicable to the Seller, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, property and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Transferred Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunderthereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization, moratorium insolvency or other similar laws affecting creditor's creditors' rights generallygenerally and to general principles of equity (whether considered in a proceeding in equity or at law).
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller sale made pursuant to this Agreement will constitute a valid sale, transfer, transfer and assignment of the Sold Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Transferred Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date that:
(i) The is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of VirginiaDelaware and has full power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business in every jurisdiction where the nature of enter into and perform its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.obligations under this Agreement;
(bii) The the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary action on the part of the Seller; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, 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 Seller or its properties or the charter or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights of creditors generally, (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) any notice, order, directive or similar action by a federal banking regulatory authority that prohibits or enjoins performance of this Agreement by the Seller; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(eb) Each Receivable sold hereunder is an Eligible Receivable.
The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the related Transfer Agreement were made as of the date of transfer under such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (fi) No proceeds a representation or warranty of any Purchase will be usedthe Transferor under the related Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, directly the only right or indirectly remedy of the Depositor with respect to a breach by the Seller, for Seller of such representation and warranty (other than a breach by the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U Seller of the Board of Governors representations made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xv)) shall be the right to enforce the obligations of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder Transferor under any applicable representation or thereof.
(g) Sales of Sold Receivables warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xi) and 1.04(b)(xv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Agreement will Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xv)) are applicable only to facts, conditions or events that do not constitute a valid sale, transfer, and assignment breach of any representation or warranty made by the Sold Receivables to Transferor in the Purchaser, enforceable against creditors of, and purchasers from, the Sellerrelated Transfer Agreement. The Seller shall have no remaining property interest in obligation or liability with respect to any Sold Receivable, Related Security breach of a representation or Collections. Immediately prior warranty made by it with respect to the sale Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of each Sold Receivable hereundera representation or warranty made by a Transferor in the related Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the related Transfer Agreement by substituting for the affected Transferred Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller is shall, in exchange for such substitute mortgage loan, provide the legal Depositor (a) with the applicable Purchase Price for the affected Transferred Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf warrants upon delivery of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller Transferred Mortgage Loans to the Purchaser in connection with this Agreement is or will be accurate in all material respects Depositor hereunder, as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).each, that:
(i) The principal place of business and chief executive office information set forth with respect to the Transferred Mortgage Loans on the Transferred Mortgage Loan Schedule provides an accurate listing of the Seller Transferred Mortgage Loans, and the office where information with respect to each Transferred Mortgage Loan on the Seller keeps its records or has access to such records concerning the Sold Receivables are located Transferred Mortgage Loan Schedule is true and correct in all material respects at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.date or dates respecting which such information is given;
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kii) There are no actionsdefaults (other than delinquency in payment) in complying with the terms of any Mortgage, suits and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Each Mortgage requires all buildings or other proceedings improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters relating of public record as of the date of recording of such Mortgage acceptable to environmental liabilitymortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Transferred Mortgage Loan, and (3) pending or threatened against or affecting the Sellersuch other matters to which like properties are commonly subject which do not, or any of its properties, that (i) if adversely determined (individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, may then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the financial condition value of the Seller related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Each Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws, including but not limited to all applicable federal, state or local predatory and abusive lending laws;
(xii) Each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xiii) The information set forth in the Prepayment Premium Schedule included as part of the Mortgage Loan Schedule at Schedule A (including the Prepayment Premium Summary attached thereto) is complete, true and correct in all material respects on the collectability date or dates on which such information is furnished and each Prepayment Premium is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure) under applicable state law;
(xiv) No Transferred Mortgage Loan was at the time of a material portion origination subject to the Home Ownership and Equity Protection Act of 1994 (15 USC §1602(c)), Regulation Z (12 CFR 220.32) or any comparable state law;
(xv) None of the Sold Receivables Transferred Mortgage Loans are “high cost” or “covered” loans under any applicable federal, state or local predatory or abusive lending law; and
(xvi) No Transferred Mortgage Loan imposes a Prepayment Premium for a term in excess of five years.
(c) The Seller represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of the Originated Mortgage Loans originated or acquired by the Seller and listed on Schedule B hereto, but solely as to each Originated Mortgage Loan listed on Schedule B hereto, that, as of the Cut-off Date:
(i) The information set forth with respect to the Originated Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Originated Mortgage Loans, and the information with respect to each Originated Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) involve this Agreement or any transaction contemplated hereby. The Seller is not There are no defaults (other than delinquency in default payment) in complying with the terms of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Each mortgage requires all buildings or other improvements on the related statements Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of income extended coverage and retained earnings such other hazards as are customary in the area where the Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the Seller and its consolidated Subsidiaries as guidelines of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition FNMA or FHLMC. If upon origination of the Seller and its consolidated Subsidiaries as at such date and Originated Mortgage Loan, the results of Mortgaged Property was in an area identified in the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed Federal Register by the Seller in SEC filings on Form 8K, Form 10‑Q Federal Emergency Management Agency as having special flood hazards (and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale flood insurance has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Codeavailable) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.a
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Mortgage Pass-Through Certificates Ser 2003-18xs)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to and agrees with the Company that, as follows:of the date hereof and as of the Delivery Date (as defined below):
(a) The Seller is a corporation duly organized and validly existing under the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly authorized, executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to applicable except that (i) the enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the enforcement of creditors’ rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance availability of any Eligible Receivables under the Policyequitable remedies may be limited by equitable principles of general applicability.
(lb) The balance sheets of execution and delivery by the Seller and its consolidated Subsidiaries as at December 31, 2011of, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed performance by the Seller in SEC filings on Form 8Kof its obligations under, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that Agreement will not contravene any (i) a change in the debt ratings provision of the Seller does notapplicable law, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge organizational documents of the Seller, threatened action (iii) any agreement or proceeding affecting other instrument binding upon the Seller, (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Seller or any of its Subsidiaries before subsidiaries and no consent, approval, authorization or order of, or qualification with, any court, governmental body or agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in required for the financial statements or filings referred to in Section 4.01(l)performance by the Seller of its obligations under this Agreement.
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(pc) The sales of Receivables by Seller has, and on the Seller Delivery Date will have, good, marketable and unencumbered title to the Purchaser pursuant Note, free and clear of all security interests, claims, liens, equities or other encumbrances, and the legal right and power, and all authorization and approval required by law (i) to enter into this Agreement, and all other transactions between (ii) to sell and transfer the Seller Note to the Company. The sale and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors transfer of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used Note in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller accordance with this Agreement will convey to the PurchaserCompany good, marketable and unencumbered title to the Note, free and clear of all security interests, claims, liens, equities or other encumbrances.
(qd) In selecting Other than as disclosed to the Eligible Receivables to be sold hereunderCompany in writing, the Seller has not used engaged any selection criteria broker, finder or other person acting in such capacity that are materially adverse is entitled to any commission or fee in connection with the Purchaser or its assigneestransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Sale Agreement (Institutional Financial Markets, Inc.)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generallyof creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(eb) Each Receivable sold hereunder is an Eligible Receivable.
The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (fi) No proceeds a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any Purchase will be used, directly representation or indirectly warranty made by the Seller, for related Transferor in the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Sellerapplicable Transfer Agreement. The Seller shall have no remaining property interest in obligation or liability with respect to any Sold Receivable, Related Security breach of a representation or Collections. Immediately prior warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of each Sold Receivable hereundera representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller is shall, in exchange for such substitute mortgage loan, provide the legal Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf warrants upon delivery of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller Mortgage Loans to the Purchaser in connection with this Agreement is or will be accurate in all material respects Depositor hereunder, as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).each, that:
(i) The principal place of business and chief executive office information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Seller Mortgage Loans, and the office information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Seller keeps its records related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has access been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to such records concerning the Sold Receivables are located requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the addresses Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) In the case of approximately 98.12% the Mortgage Loans, (by Scheduled Principal Balance as of the Cut-off Date) the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in Section 5.01(bthe lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. In the case of approximately 98.12% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). The If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller's chief executive office , has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and principal place each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of business has the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Each Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws, including, but not changed limited to, all applicable predatory and abusive lending laws;
(xii) Each Mortgage Loan is a “qualified mortgage” within the past 12 months.meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(jxiii) With respect to Pool 1 Mortgage Loans:
(a) No Mortgage Loan was originated in the State of Georgia;
(b) The applicable Servicers for each Pool 1 Mortgage Loan will accurately and fully report its borrower credit files to all three credit repositories in a timely manner;
(c) No Pool 1 Mortgage Loan imposes a Prepayment Charge for a term in excess of five years;
(d) The Seller is not known by and has no reason to believe that any borrower will default under a Pool 1 Mortgage Loan, or that foreclosure proceedings will be commenced with respect to any such Mortgage Loan, within the six months immediately following the Closing Date;
(e) The outstanding Scheduled Principal Balance of each such Pool 1 Mortgage Loan does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇exceed the maximum original loan amount limitations set forth in the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Seller/Servicer Guide with respect to one-to-four family residential mortgage loans, Trans-Continental Leaf Tobacco Corporation Ltdwhether first lien or subordinate lien mortgage loans, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.applicable;
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Investment Loan Trust 2003-Bc2)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants as followsfollows as of the date hereof and as of the date of each Purchase hereunder:
(a) The Seller is a corporation limited liability company duly organized and formed, validly existing and in good standing under the laws of the State of Virginia, and Delaware. The Seller is duly qualified to do business business, and is in good standing, in every other jurisdiction where the nature of its business requires it to be so qualified, except where unless the failure to so qualify would not reasonably be likely expected to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunderTransaction Documents, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) do not contravene (1) the Seller's organizational documentscertificate of formation or limited liability company agreement, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables as created pursuant to this Agreement). This Agreement Each of the Transaction Documents has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Official Body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document the Transaction Documents to which it is a party or any other document to be delivered by it hereunderthereunder, except for the filing of UCC financing statements referred to in Section 3.01.
(d) This Agreement Each of the Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting creditor's the enforcement of creditors' rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder is an Eligible ReceivableThe opening pro forma balance sheet of the Seller as of June 30, 2003, giving effect to the initial Incremental Purchase to be made under this Agreement, a copy of which has been furnished to the Administrative Agent and each Managing Agent, fairly presents the financial condition of the Seller as of such date, in accordance with GAAP. Since its formation no change, occurrence or development has occurred (including, without limitation, with respect to any commenced or threatened material litigation or proceeding) that has had or could reasonably be expected to have a Material Adverse Effect.
(f) There is no pending or (to the best knowledge of the Seller) threatened action or proceeding affecting the Seller before any Official Body. The Seller is not in default in any material respect of any order of any Official Body.
(g) No proceeds of any Purchase will be usedused for a purpose that violates or would be inconsistent with, directly Regulation T, U or indirectly X promulgated by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereoftime.
(gh) Sales of Sold Receivables Each Receivable treated as or represented to be a Pool Receivable is owned by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the PurchaserClaims created hereunder). When the Purchaser makes The Purchasers have acquired a Purchase it shall acquire valid and perfected first priority ownership of security interest in each Sold Receivable, Pool Receivable now existing or hereafter arising and in the Related Security and the Collections with respect thereto thereto, in each case free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no (other than Adverse Claims created hereunder). No effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file filed in any recording office listing the Seller as debtor, covering any asset of the Seller except such as may be filed in favor of the Purchaser Administrative Agent in accordance with this Agreement Agreement. No effective financing statement or other instrument similar in connection with effect, is filed in any Adverse Claim arising solely recording office listing the Originator as the result of debtor, covering any action taken by Receivable, Related Security or on behalf Collections except such as may be filed in favor of the PurchaserSeller and assigned to the Administrative Agent in accordance with this Agreement. Prior to giving effect to any transfer under the Originator Purchase Agreement, all Receivables were payable to the Originator as principal for its own account. The Originator has no obligation (whether pursuant to any contract, any requirement of Law or otherwise) to remit any Collections on the Receivables to any Pharmaceutical Plan or to any other Person, other than to the Sellers and the Purchasers as provided in the Originator Purchase Agreement and this Agreement.
(hi) All Each Servicer Report (if prepared by any Transaction Party or one of their respective Affiliates, or to the extent that information and each reportcontained therein is supplied by any Transaction Party or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time (whether before, on or after the date of this Agreement) by the Seller or on behalf of any Transaction Party to the Administrative Agent, any Managing Agent or any Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Administrative Agent, such Managing Agent or such Purchaser, as the case may be, at such time) as of the date so furnished (furnished, and does not no such Servicer Report, information, exhibit, financial statement, document, book, record or report contains or will contain any untrue statement of a material fact or omits or will omit any information to state a material fact necessary in order to make the information statements contained therein therein, in the light of the circumstances under which they were made, not misleading under the circumstances)misleading.
(ij) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jk) The names and addresses of all the Deposit Account Banks together with the account numbers of the Deposit Accounts at such Deposit Account Banks are as specified in Schedule III hereto, as such Schedule III may be updated from time to time pursuant to Section 5.01(g).
(l) Since the date of its formation, the Seller is has not known by and does not use used any company name, tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Transname other than the name in which it has executed this Agreement. The Seller's Federal Employer Identification Number is 83-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA08665.
(km) There are no actionsThe Seller was formed on July 10, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of 2003 and the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or did not engage in any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made business activities prior to the date of this Agreement, there . The Seller has been no material adverse change in the business, operations, property or financial or other condition Subsidiaries. Medco directly owns 100% of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge membership interests of the Seller, threatened action or proceeding affecting the Seller or free and clear of any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Adverse Claims.
(n) No transaction contemplated hereby requires compliance with any bulk sales act The Seller is not, and is not controlled by, an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or similar lawis exempt from all provisions of such Act.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filedThe Seller is Solvent.
(p) The sales With respect to each Receivable treated as or represented to be a Pool Receivable, the Seller (i) received such Receivable as a contribution to the capital of Receivables the Seller by the Originator or (ii) purchased such Receivable from the Originator in exchange for payment (made by the Seller to the Purchaser pursuant Originator in accordance with the provisions of the Originator Purchase Agreement) of cash, an addition to this Agreementthe principal amount of the Subordinated Note, or a combination thereof in an amount which constitutes fair consideration and all other transactions between reasonably equivalent value. No such sale or contribution was made for or on account of an antecedent debt owed by the Originator to the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each no such sale has been made for “reasonably equivalent value” (as such term or capital contribution is used in Section 548 or may be voidable or subject to avoidance under any section of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting Each Receivable included in the calculation of the Net Receivables Pool Balance on any date shall be an Eligible Receivables to be sold hereunder, Receivable as of such date.
(r) The Receivable Interest Percentage does not exceed the Seller Maximum Receivable Interest Percentage.
(s) No event has not used any selection criteria that are materially adverse to the Purchaser occurred and is continuing and no condition exists which constitutes a Termination Event or its assigneesIncipient Termination Event.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Medco Health Solutions Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the (a) The Seller hereby represents and warrants as followsthat:
(ai) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of VirginiaDelaware;
(ii) The Seller has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(iii) This Agreement has been duly and validly authorized, executed and delivered by the Seller and assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Seller hereunder are the legal, valid and binding obligations of the Seller, enforceable in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or other laws relating to or affecting creditors' rights generally, or by general principles of equity (regardless of whether such enforceability is duly qualified to do business considered in every jurisdiction where a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the nature performance of its business requires obligations hereunder by the Seller will not conflict with any provision of its certificate of incorporation or bylaws, or any law or regulation to which the Seller is subject, or conflict with, result in a breach of or constitute a default under (or an event which with notice or lapse of time or both would constitute a default under) any of the terms, conditions or provisions of any agreement or instrument to which the Seller is a party or by which it is bound, or any order or decree applicable to be so qualifiedthe Seller, except where failure to so qualify or result in the creation or imposition of any lien on any of the Seller's assets or property, which would not be likely to materially and adversely affect the Purchaser's rights hereunder.
(b) ability of the Seller to carry out the transactions contemplated by this Agreement. The Seller has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Seller of this Agreement Agreement;
(v) There is no action, suit or proceeding pending against the Seller in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the ability of the Seller to carry out its obligations under this Agreement; and
(vi) The Trustee, if not the owner of the related Mortgage Loan and the other documents to be delivered by it hereunderMontehiedra Partner Loans, including will have a valid and perfected security interest of first priority in each of the Seller's sale of Receivables hereunder Mortgage Loans and the Seller's use Montehiedra Partner Loans and any proceeds thereof.
(b) It is understood and agreed that the representations and warranties set forth in this Section 2.03 shall survive delivery of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable respective Mortgage Files to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting Trustee until the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its propertytermination of this Agreement, and (iv) do not result in or require shall inure to the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer benefit of the Seller's interest in Certificateholders and the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the SellerMaster Servicer.
(c) No authorization Upon discovery by the Custodian, the Master Servicer, the Special Servicer, or approval the Trustee of a breach of any representation or other action bywarranty of the applicable Responsible Party in the Loan Sale Agreement or the Responsible Party Agreement, and no notice as the case may be, with respect to any Mortgage Loan or filing withthe Montehiedra Partner Loans, as the case may be, or that any governmental authority or regulatory body is document required to be obtainedincluded in the Mortgage File does not conform to the requirements of Section 2.01, takensuch Person shall give prompt notice thereof to the applicable Responsible Party and the Seller, given and such Responsible Party shall, to the extent such Responsible Party is obligated to cure or made by repurchase the Seller for related Mortgage Loan (or Related Individual Loan with respect to the due executionCadillac Fairview Pool Loan) or the Montehiedra Partner Loans, delivery and performance by as the Seller case may be, under the terms of this the Loan Sale Agreement or the Responsible Party Agreement, as the case may be, either cure such breach or repurchase said Mortgage Loan (or Related Individual Loan with respect to the Cadillac Fairview Pool Loan) or the Montehiedra Partner Loans, as the case may be, at the Repurchase Price within 90 days of the receipt of notice of the breach; it being understood and agreed that none of the Custodian, the Master Servicer, the Special Servicer, and the Trustee has an obligation to conduct any investigation with respect to such matters (except, in the case of the Mortgage Files, to the extent provided in Section 2.01); provided, however, that in the event that such breach or non-conformity is capable of being cured but not within such 90 day period and the applicable Responsible Party has commenced and is diligently proceeding with the cure of such breach or non-conformity within such 90 day period (other document than a breach that would cause a related Mortgage Loan to which it qualify as a Qualified Mortgage), the applicable Responsible Party shall have an additional 90 days to complete such cure; provided, further, that with respect to such additional 90 day period such Responsible Party shall have delivered an officer's certificate to the Trustee and the Master Servicer setting forth the reason such breach is a party to not capable of being cured within the initial 90 day period and what actions such Responsible Party is pursuing in connection with the cure thereof and stating that such Responsible Party anticipates that such breach will be delivered by it hereundercured within the additional 90 day period.
(d) This Agreement constitutes Upon receipt by the legal, valid and binding obligation Master Servicer from the applicable Responsible Party of the Seller enforceable against Repurchase Price for the Seller repurchased Mortgage Loan (or Related Individual Loan with respect to the Cadillac Fairview Pool Loan) or the Montehiedra Partner Loans, as the case may be, the Master Servicer shall deposit such amount in accordance the Collection Account, and the Trustee, pursuant to Section 3.11, shall, upon receipt of a certificate of a Servicing Officer certifying as to the receipt by the Master Servicer of the Repurchase Price and the deposit of the Repurchase Price into the Collection Account pursuant to this Section 2.03(d), release or cause to be released to the applicable Responsible Party the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be prepared by the Master Servicer to vest in the applicable Responsible Party any Mortgage Loan (or Related Individual Loan, with its termsrespect to the Cadillac Fairview Pool Loan) or the Montehiedra Partner Loans, subject as the case may be, released pursuant hereto, and any rights of the applicable Responsible Party in, to applicable bankruptcyand under the Loan Sale Agreement or Responsible Party Agreement, insolvencyas the case may be, reorganizationas it relates to such Mortgage Loan (or Related Individual Loan with respect to the Cadillac Fairview Pool Loan) or the Montehiedra Partner Loans, moratorium or other similar laws affecting creditor's rights generallyas the case may be, that were initially transferred to the Trust Fund under Section 2.01, and the Trustee and the Master Servicer shall have no further responsibility with regard to such Mortgage File.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(fIn the event that the applicable Responsible Party incurs any expense in connection with curing a breach of a representation or warranty pursuant to Section 2.03(c) No proceeds of any Purchase will be used, directly which also constitutes a default under the related Mortgage Loan or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of AmericaMontehiedra Partner Loans, as the same is from time case may be, such Responsible Party shall have a right, subrogated to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment that of the Sold Receivables Trustee, as successor to the Purchasermortgagee, enforceable against creditors of, and purchasers from, to recover the Selleramount of such expenses from the related Borrower. The Seller Master Servicer shall have no remaining property interest use reasonable efforts in any Sold Receivablerecovering, Related Security or Collections. Immediately prior to assisting the sale of each Sold Receivable hereunderapplicable Responsible Party in recovering, from the Seller is related Borrower the legal and beneficial owner of each such Sold Receivable, free and clear amount of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaserexpenses.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gs Mortgage Securities Ii Series 1997-Gl I)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferors with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferors with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge sole right or remedy of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller to of such representation and warranty (other than a breach by the Purchaser Seller of the representations and warranties made pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between 1.04(b)(viii)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and the Purchaser, have been and will 1.04(b)(viii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 The Depositor acknowledges and agrees that the representations and warranties of the United States Bankruptcy CodeSeller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not for constitute a breach of any representation or on account warranty made by a Transferor in the Transfer Agreement or Bring Down Letter. The Seller shall have no obligation or liability with respect to any breach of “antecedent debt”(as a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such term used breach also constitutes a breach of a representation or warranty made by a Transferor in Section 547 the Transfer Agreement or Bring Down Letter, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if such Transferor fulfills its obligations under the provisions of the United States Bankruptcy Code) owed Transfer Agreement and the Bring Down Letter by substituting for the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderaffected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller has not used any selection criteria that are materially adverse shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the Purchaser foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of August 30, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or its assigneesdates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date or as of any Transfer Date that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its termsterms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(b) The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date or any Transfer Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a "master" or "blanket" hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender's Title Insurance Policy or attorney's opinion of title and abstract of title delivered to the originator of such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney's opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller's knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to each Mortgage Loan have been complied with;
(xii) Each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code and Treas. Reg. § 1.860G-2;
(xiii) The information set forth in the Prepayment Charge Schedule included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganizationmoratorium, moratorium or receivership and other similar laws affecting creditor's rights generallygenerally or the collectibility thereof may be limited due to acceleration in connection with foreclosure) under applicable state law;
(xiv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 or any comparable state law;
(xv) No proceeds from any Mortgage Loan were used to finance single-premium credit insurance policies;
(xvi) The Servicers for each Mortgage Loan will accurately and fully report its borrower credit files to all three credit repositories in a timely manner; and
(xvii) No Mortgage Loan imposes a Prepayment Charge for a term in excess of five years. It is understood and agreed that the representations and warranties set forth herein and the obligations of the Seller set forth in this Section survive the Closing Date and any Transfer Date. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties (excluding a breach of clause (xiii) under this Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan, and that does not also constitute a breach of a representation or warranty of the related Transferor in the applicable Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or Transfer Price (as set forth in the related Transfer Supplement) or (c) within the two year period following the Closing Date or any Transfer Date, as applicable, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(ec) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds Notwithstanding the second paragraph of any Purchase will be usedSection 1.04(b), directly or indirectly by in connection with the Seller's representations and warranties made in clause (xiii) of Section 1.04(b), for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U 90 days of the Board earlier of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables discovery by the Seller pursuant to this Agreement will constitute or receipt of notice from the applicable Servicer or the NIMS Insurer of a valid sale, transfer, breach of any representation and assignment warranty of the Sold Receivables to Seller made in clause (xiii) of Section 1.04(b) above, which breach materially and adversely affects the Purchaser, enforceable against creditors of, and purchasers from, interests of the Seller. The Seller shall have no remaining property interest Class P Certificateholders in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunderPrepayment Charge, the Seller is the legal and beneficial owner of each such Sold Receivableshall, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
if (i) The principal place of business such representation and chief executive office of the Seller warranty is breached and the office where the Seller keeps its records or a Principal Prepayment has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables occurred or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) if a change in law subsequent to the debt ratings Closing Date or the Transfer Date, as applicable, limits the enforceability of the Seller does notPrepayment Charge (other than in the circumstances set forth in clause (xiii) of Section 1.04(b)), pay, at the time of such Principal Prepayment or change in and of itselflaw, constitute a material adverse change and (ii) this representation is made only as the amount of the date of this Agreement).
(m) There is no pending orscheduled Prepayment Charge, to for the best knowledge benefit of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors holders of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderClass P Certificates, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter (whether or not such fact, condition or event would also constitute a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge only rights or remedies of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller of such representation and warranty shall be first, the right to enforce the Purchaser obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor shall have the right to enforce such rights against the Seller under this Agreement with respect to such representation or warranty; provided, that in the event that the Depositor has received evidence of the issuance of a Transferor Affirmation Notice, the Depositor shall only be entitled to enforce any right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller under the Sale Agreement with respect to such representation or warranty. The representations made by the Seller pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between the Seller and the Purchaser, have been and will 1.04(b)(viii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 In furtherance of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderabove, the Seller has not used any selection criteria expressly acknowledges that are materially adverse prior to the Purchaser issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Depositor for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its assigneescontractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of July 14, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Mortgage Loan Asset-Backed Certificates, Series 2005-3)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to the Purchaser as follows:
(a) 3.1 The Seller is a corporation duly organized has the full right, power and validly existing under authority to enter into this Agreement and to transfer, convey and sell to the laws Purchaser at the Closing the Shares to be sold by the Seller hereunder and, upon consummation of the State purchase contemplated hereby, the Purchaser will acquire from the Seller good, valid and marketable title to such Shares, free and clear of Virginiaall covenants, conditions, restrictions, voting trust arrangements, shareholder agreements, liens, pledges, charges, security interests, encumbrances, options and is adverse claims or rights whatsoever.
3.2 This Agreement has been duly qualified to do business authorized, executed and delivered on behalf of the Seller and constitutes the valid and binding obligation of the Seller, enforceable in every jurisdiction where the nature of accordance with its business requires it to be so qualifiedterms, except where failure as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium or other similar laws relating to so qualify would not be likely to materially adversely affect or affecting the Purchaser's rights hereunder.
(b) of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses. The execution, delivery and performance of this Agreement, the sale and delivery of the Shares to be sold by the Seller of this Agreement Seller, and compliance with the other documents to be delivered provisions hereof by it hereunder, including the Seller's sale , do not and will not, with or without the passage of Receivables hereunder and time or the Seller's use giving of notice or both, (a) assuming the accuracy of the proceeds representations and warranties of Purchasesthe Purchaser set forth in Section 4, (i) are within the Seller's powersviolate any provision of law, (ii) have been duly authorized by all necessary company actionstatute, (iii) do not contravene (1) the Seller's organizational documents, (2) any lawordinance, rule or regulation applicable to the Seller, (3) or any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any orderruling, writ, judgmentinjunction, awardorder, injunction judgment or decree binding on of any court, administrative agency or affecting the Seller other governmental body, or its property, and (ivb) do not result in any breach of any of the terms, conditions or require provisions of, or constitute a default (or give rise to any right of termination, cancellation or acceleration) under, or result in the creation of any lien, security interest or other interest, charge or encumbrance upon any of the properties or with respect assets of the Seller under, any note, indenture, mortgage or lease, or any other material contract or other instrument, document or agreement, to which the Seller is a party or by which it or any of its properties (except for property is bound or affected.
3.3 The Seller is not a party to, subject to or bound by any agreement or any judgment, order, writ, prohibition, injunction or decree of any court or other governmental body which would prevent the transfer execution or delivery of this Agreement by the Seller or the transfer, conveyance and sale of the Seller's interest in Shares to be sold by the Sold Receivables Seller to the Purchasers pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerterms hereof.
(c) No authorization 3.4 All consents, approvals or approval authorizations of, or other action byregistrations, and no notice to filings or filing declarations with, any governmental authority or regulatory body is any other person, if any, required to be obtained, taken, given or made by in connection with the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to the transactions contemplated hereby have been or at the Closing will have been obtained by the Seller and will be delivered by it hereunderin full force and effect.
(d) This Agreement constitutes 3.5 The Seller is the legalsole owner of, and has good, valid and binding obligation of marketable title to, the Seller enforceable against Shares which are to be transferred to the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables Purchasers by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivablehereto, free and clear of any Adverse Claim (and all covenants, conditions, restrictions, voting trust arrangements, shareholder agreements, liens, pledges, charges, security interests, encumbrances, options and adverse claims or rights whatsoever.
3.6 No broker or finder has acted for the Seller in connection with this Agreement or the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other than any Adverse Claim arising solely as the result commissions in respect of any action taken such transactions based upon agreements, arrangements or understandings made by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMSA Humble Acquisition Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized and formed, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's ’s sale and contribution of Receivables hereunder and the Seller's use of the proceeds of Purchaseshereunder, (i) are within the Seller's ’s limited liability company powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1) the Seller's organizational documents’s certificate of formation and limited liability company agreements, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for the transfer of the Seller's ’s interest in the Sold Transferred Receivables pursuant to this Agreement); and no transaction contemplated by this Agreement requires compliance with any bulk sales act or similar law. This Agreement has been duly executed and delivered by a duly authorized officer of the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder, except for the filing of UCC financing statements which are referred to herein.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or and other similar laws affecting creditor's creditors’ rights generallygenerally and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, Sales and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller contributions made pursuant to this Agreement will constitute a valid sale, transfer, transfer and assignment of the Sold Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Transferred Receivable.
(f) There is no pending or, Related Security or Collections. Immediately prior to the sale Seller’s knowledge, threatened action or proceeding affecting the Seller before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of each Sold Receivable hereunderthe Seller or the ability of the Seller to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement; the Seller is not in default with respect to any order of any court, arbitration or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the legal and beneficial owner business or operations of each such Sold the Seller.
(g) No proceeds of any purchase will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(h) Each Transferred Receivable, together with the Related Security, is owned (prior to its sale or contribution hereunder) by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase purchase or receives a contribution of a Contributed Receivable it shall acquire valid and perfected first priority ownership of each Sold Receivable, Transferred Receivable and the Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or (other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with than any Adverse Claim arising solely as the result of any action taken by the Purchaser). No effective financing statement or other instrument similar in effect covering any Contract or any Transferred Receivable, any interest therein, the Related Security or Collections with respect thereto is on behalf file in any recording office, except those filed in favor of the PurchaserPurchaser relating to this Agreement and those filed pursuant to the Originator Purchase Agreement.
(hi) All information and each Each report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be true, complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances)furnished.
(ij) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Transferred Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jk) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Annex B (as the same may be updated from time to time pursuant to Section 5.01(g)).
(l) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(km) There are no actionsThe Seller was formed on December 15, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of 2000 and the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or did not engage in any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made business activities prior to the date of this the Agreement, there . The Seller has been no material adverse change in Subsidiaries other than the business, operations, Purchaser.
(i) The fair value of the property or financial or other condition of the Seller (it being understood that (i) a change in is greater than the debt ratings total amount of the Seller does notliabilities, in and of itselfincluding contingent liabilities, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting (ii) the present fair salable value of the assets of the Seller is not less than the amount that will be required to pay all probable liabilities of the Seller on its debts as they become absolute and matured, (iii) the Seller does not intend to, and does not believe that it will, incur Debt or any of its Subsidiaries before any courtliabilities beyond the Seller’s abilities to pay such Debt and liabilities as they mature and (iv) the Seller is not engaged in a business or a transaction, governmental agency and is not about to engage in a business or arbitrator a transaction, for which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar lawSeller’s property would constitute unreasonably small capital.
(o) All financing statements necessary With respect to each Receivable, the Seller (i) shall have received such Receivable as a contribution to the capital of the Seller by the Originators or (ii) shall have purchased such Receivable from the Originators in order exchange for payment (made by the Seller to perfect the Purchaser's ownership interest Originators in accordance with the Receivables provisions of the Originator Purchase Agreement) of cash in an amount which constitutes fair consideration and reasonably equivalent value. Each such sale referred to in clause (ii) of the preceding sentence shall not have been prepared made for or on account of an antecedent debt owed by the Originators to the Seller and filedno such sale is voidable or subject to avoidance under any section of the Federal Bankruptcy Code.
(p) The sales of Receivables With respect to any programs used by the Seller in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent so that such new Collection Agent shall have the benefit of such programs (it being understood, however, that the Collection Agent, if other than United Rentals, shall be required to be bound by a confidentiality agreement reasonably acceptable to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser).
(q) In selecting the Eligible Receivables to be sold hereunderAll sales, the Seller has not used any selection criteria that are materially adverse excise or other taxes with respect to the Purchaser merchandise, insurance or its assigneesservices which are the subject of any Contract for a Receivable have been paid when due.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (United Rentals North America Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaser that as of the date hereof that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionPurchaser, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generallyof creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(eb) Each Receivable sold hereunder is an Eligible Receivable.
The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (fi) No proceeds a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the only right or remedy of the Purchaser shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Purchaser acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any Purchase will be used, directly representation or indirectly warranty made by the Seller, for related Transferor in the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Sellerapplicable Transfer Agreement. The Seller shall have no remaining property interest in obligation or liability with respect to any Sold Receivable, Related Security breach of a representation or Collections. Immediately prior warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of each Sold Receivable hereundera representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller is shall, in exchange for such substitute mortgage loan, provide the legal Purchaser (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf warrants upon delivery of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller Mortgage Loans to the Purchaser in connection with this Agreement is or will be accurate in all material respects hereunder, as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).each, that:
(i) The principal place of business and chief executive office information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Seller Mortgage Loans, and the office where information with respect to each Mortgage Loan on the Seller keeps its records or has access to such records concerning the Sold Receivables are located Mortgage Loan Schedule is true and correct in all material respects at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.date or dates respecting which such information is given;
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kii) There are no actions, suits or defaults (other proceedings (including matters relating to environmental liabilitythan delinquency in payment) pending or threatened against or affecting in complying with the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default terms of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Each Mortgage requires all buildings or other improvements on the related statements Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of income extended coverage and retained earnings such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the Seller guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and its consolidated Subsidiaries as such flood insurance has been made available) a flood insurance policy meeting the requirements of and for the fiscal year then ended, copies current guidelines of the Federal Flood Insurance Administration is in effect which have been furnished policy conforms to the Purchaser, fairly present the financial condition requirements of the Seller current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and its consolidated Subsidiaries as expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such date Mortgagor's cost and expense, and to seek reimbursement therefor from the results Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the operations required hazard insurance, provided the policy is not a "master" or "blanket" hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the Seller insurer, is in full force and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith full force and without intent effect and inure to hinder, delay or defraud creditors the benefit of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 Purchaser upon the consummation of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed transactions contemplated by the Seller to the Purchaserthis Agreement.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser, the Operating Agent and the Collateral Agent as of the date hereof, as of the Effective Date and on each subsequent Purchase Date as follows:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State its jurisdiction of Virginia, incorporation and is duly qualified to do business business, and is in every good standing, in each jurisdiction where in which the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The Seller has the power and authority to own, pledge, mortgage, operate and convey all of its properties, to conduct its business as now or proposed to be conducted and to execute and deliver this Agreement and the Related Documents and to perform the transactions contemplated hereby and thereby.
(c) The Seller is and has been a wholly-owned subsidiary of Merisel Americas, Inc.
(d) The Seller is and has been operated in such a manner that the separate corporate existence of the Seller and each Originator would not be disregarded in the event of a bankruptcy or insolvency of any Originator and in such regard:
(i) the Seller is and has been a limited purpose corporation whose activities are restricted in its certificate or articles of incorporation;
(ii) except as provided in the Services Agreement, no Originator nor any Affiliate of the Originator is nor has been involved in the day-to-day management of the Seller;
(iii) except as provided in the Services Agreement, other than the purchase and contribution of Receivables, the incurring and payment of indebtedness and interest pursuant to the Subordinated Note, the payment of dividends and the return of capital to the Originator, any lease or sub-lease of office space or equipment, the payment of Servicing Fees to the Servicer under this Agreement and the intercorporate transactions engaged in pursuant to the ▇▇▇▇▇▇ Agreement, the Seller engages or has engaged in no intercorporate transactions with the Originator or any Affiliate of the Originator; -13-
(iv) the Seller maintains separate corporate records and books of account from each Originator, holds regular corporate meetings and otherwise observes corporate formalities and has a separate business office from each Originator;
(v) the financial statements and books and records of the Seller and each Originator prepared after the Effective Date reflect the separate corporate existence of the Seller;
(vi) the Seller maintains its assets separately from the assets of each Originator and any other Affiliate of each Originator (including through the maintenance of separate bank accounts and except for any Records to the extent necessary for the servicing of the Transferred Receivables), the Seller's funds and assets, and records relating thereto, have not been and are not commingled with those of the Originator or any other Affiliate of the Originator and the separate creditors of the Seller will be entitled to be satisfied out of the Seller's assets prior to any value in the Seller becoming available to the Seller's equityholders;
(vii) except as provided in the Services Agreement, this Agreement or the Related Documents, no Originator nor any Affiliate of the Originator (excluding the Seller)
(A) pays the Seller's expenses; (B) guarantees the Seller's obligations, or (C) advances funds to the Seller for the payment of expenses or otherwise;
(viii) all business correspondence of the Seller and other communications are conducted in the Seller's own name, on its own stationery and through a separately-listed telephone number;
(ix) the Seller does not act as agent for the Originator or any Affiliates of the Originator, but instead presents itself to the public as a corporation separate from each Originator, independently engaged in the business of purchasing and financing Receivables;
(x) the Seller maintains at least two independent directors each of whom, at all times after the Effective Date, shall not be a shareholder, director, officer, employee or associate of the Originator or any Affiliate of the Originator (other than the Seller) as provided in its certificate or articles of incorporation; and
(xi) the bylaws or Articles of Incorporation of the Seller require it to maintain (A) correct and complete -14- books and records of account, and (B) minutes of the meetings and other proceedings of its shareholders and board of directors.
(e) The Seller has not engaged, and does not presently engage, in any activity other than the activities undertaken pursuant to this Agreement, the Related Documents, the Services Agreement and the ▇▇▇▇▇▇ Agreement, nor has the Seller entered into any agreement other than this Agreement, the Related Documents, the Services Agreement, the ▇▇▇▇▇▇ Agreement and any agreement necessary to undertake any activity pursuant to this Agreement, the Related Documents or the ▇▇▇▇▇▇ Agreement.
(f) The execution, delivery and performance by the Seller of this Agreement Agreement, the Related Documents and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder transactions contemplated hereby and the Seller's use of the proceeds of Purchases, thereby (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company actioncorporate or other action on the part of the Seller, (iiiii) do not contravene or cause the Seller to be in default under (1A) the Seller's organizational documentscertificate or articles of incorporation or by-laws, (2) any law, rule or regulation applicable to the Seller, (3B) any contractual restriction contained in any (except as otherwise provided or, in Section 5.01(j)(i)(B)the case of the Originator only, any material) indenture, loan or credit agreement, lease, mortgage, security agreement, bond, note, or other (or,in the case of the Originator only, any material) agreement or instrument binding on or affecting the Seller or its property or the Originator or its property, or (4C) any law, rule, regulation, order, license requirement, writ, judgment, award, injunction injunction, or decree applicable to, binding on or affecting the Seller or its property or the Originator or its property, and (iviii) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for the transfer property of the Seller's interest Seller or the Originator (other than in favor of the Sold Receivables pursuant to this AgreementPurchaser and the Collateral Agent as contemplated hereunder). .
(g) This Agreement has and the Related Documents have each been duly executed and delivered by the Seller.
(ch) No authorization consent of, notice to, filing with or approval permits, qualifications or other action by, and no notice to by any Governmental Authority or filing with, any governmental authority or regulatory body other party is required to be obtained, taken, given or made by the Seller (i) for the due execution, delivery and performance by the Seller of this Agreement or any of the Related Documents, (ii) for the perfection of or the exercise by each of the Purchaser, the Operating Agent or the Collateral Agent of any of its rights or remedies hereunder or thereunder, (iii) for the grant by the Seller of the security interests granted under Section 8.01 of this Agreement, (iv) for the perfection of or the exercise by each of the Purchaser or the Collateral Agent of its rights and remedies provided for in this Agreement, or (v) to ensure the legality, validity, enforceability or admissibility into evidence of this Agreement in any jurisdiction in which any of the Collateral is located, in each case other document than consents, notices, filings and other actions which have been obtained or made and complete copies of which have been provided to which it is a party to be delivered by it hereunderthe Purchaser, the Operating Agent or -15- the Collateral Agent and continuation statements in respect of any such filings.
(di) This No transaction contemplated by this Agreement constitutes requires compliance with any bulk sales act or similar law.
(j) Each of this Agreement and each Related Document is the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its respective terms. Each of the Seller Assigned Agreements to which the Originator or the Seller is a party constitutes the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditor's the enforceability of creditors' rights generallygenerally and general equitable principles, whether applied in a proceeding at law or in equity.
(ek) Each Receivable sold hereunder There is an Eligible Receivableno pending or threatened, nor any reasonable basis for any, action, suit or proceeding against or affecting the Seller, its officers or directors, or the property of the Seller, in any court or tribunal, before any arbitrator of any kind or before or by any Governmental Authority.
(fl) No proceeds injunction, writ, restraining order or other order of any Purchase will be used, directly nature adverse to the Seller or indirectly by the Seller, for conduct of its business or which is inconsistent with the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U due consummation of the Board of Governors of transactions contemplated by this Agreement or the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofRelated Documents has been issued by a Governmental Authority nor been sought by any Person.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(im) The principal place of business and chief executive office of the Seller Seller, and the office offices where the Seller keeps its records or has access to such records concerning Records and the Sold Receivables original copies of the Seller Assigned Agreements are located at the addresses referred to address of the Seller for notices under Section 14.01 and as set forth on Schedule 5 and there are currently no, and during the past four months (or such shorter time as the Seller has been in Section 5.01(b). The Seller's chief executive office and existence) there have not been, any other locations where the Seller is located (as that term is used in the UCC of the jurisdiction where such principal place of business is located) or keeps Records.
(n) The Seller does not have and has never conducted business using tradenames, fictitious names, assumed names or "doing business as" names and has not changed within its name during the past 12 monthslast five years.
(jo) The Seller does not have any Subsidiaries. -16-
(p) The Seller is solvent and will not known become insolvent after giving effect to the transactions contemplated by this Agreement and does not use the Related Documents. The Seller has no Debts to any tradename or doing-business-as namePerson other than pursuant to this Agreement, except for Dimon International AGthe Related Documents and the Services Agreement. The Seller, Intabex SAafter giving effect to the transactions contemplated by this Agreement and the Related Documents, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAwill have an adequate amount of capital to conduct its business in the foreseeable future.
(kq) There are For federal income tax, reporting and accounting purposes, the Seller will treat the purchase or assignment of each Transferred Receivable pursuant to the Transfer Agreement as a purchase or absolute assignment of each Originator's full right, title and ownership interest in such Transferred Receivable to the Seller (and those Receivables contributed to the Seller by the Originator pursuant to the Transfer Agreement shall be accounted for as an increase in the stated capital of the Seller) and the Seller has not in any other manner accounted for or treated the transactions in Transferred Receivables.
(r) The Seller has complied and will comply in all respects with all applicable laws, rules, regulations, judgments, agreements, decrees and orders with respect to its business and properties and all Collateral.
(s) The Seller has filed on a timely basis all tax returns (federal, state and local) required to be filed, is not liable for taxes payable by any other Person (other than Affiliates of the Seller with whom the Seller files a consolidated tax return for which the Seller is liable on a consolidated basis) and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Seller (other than taxes, fees, amendments or governmental charges which the Seller is contesting in good faith with such taxing authority and in respect of which no actionsfinal unappealable order has been made against the Seller). No tax lien or similar Adverse Claim has been filed, suits and no claim is being asserted, with respect to any such tax, assessment or other proceedings governmental charge. Any taxes, fees and other governmental charges payable by the Originator in connection with the execution and delivery of this Agreement and the Related Documents and the transactions contemplated hereby or thereby have been paid or shall have been paid if and when due at or prior to such Transfer Date.
(including matters relating t) Each Investment Base Certificate and Request Notice is accurate in all material respects and the Investment Base as of the Effective Date is not materially different than the Investment Base as reported in the Investment Base Certificate delivered pursuant to environmental liability3.01(p).
(u) pending Each Transferred Receivable is owned by the Seller free and clear of any Adverse Claim and the Seller has the full -17- right, corporate power and lawful authority to assign, transfer and pledge the same and interests therein and all substitutions therefor and additions thereto pursuant to Section 8.01, and upon making each Purchase, the Purchaser will have acquired a perfected, first priority and valid ownership interest in such Transferred Receivables, free and clear of any Adverse Claim. No effective financing statement or threatened against or affecting the Seller, other instrument similar in effect covering all or any part of its propertiesthe Seller Collateral is on file in any recording office, that except such as may have been filed in favor of the Purchaser as "Secured Party/Purchaser" and the Collateral Agent as "Assignee" pursuant to Article VIII of this Agreement or, with respect to the Transferred Receivables, in favor of the Seller pursuant to the Transfer Agreement unless termination statements or statements of release are provided thereto with respect to Section 3.01(f).
(v) Each Transferred Receivable was purchased by or contributed to the Seller on the relevant Transfer Date pursuant to the Transfer Agreement.
(w) Each purchase of Receivables under the Transfer Agreement will constitute (i) if adversely determined a "current transaction" within the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and (individually ii) a purchase or in other acquisition of notes, drafts, acceptances, open accounts receivable or other obligations representing part or all of the aggregate)sales price of merchandise, may have a material adverse effect insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(x) All information heretofore or hereafter furnished by or on the financial condition behalf of the Seller to the Collateral Agent, the Operating Agent or on the collectability of a material portion of the Sold Receivables or (ii) involve Purchaser in connection with this Agreement or any transaction contemplated hereby. hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading, provided that any projections, pro forma or preliminary financial information furnished are based on good faith estimates and assumptions believed by the Seller to be reasonable at the time made and the Collateral Agent, the Operating Agent and the Purchaser each acknowledge that such projections as to future events are not to be viewed as facts and that actual results for such period may differ from the projected results.
(y) The Seller is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) payable to the PBGC (or any successor thereto) under ERISA.
(i) The Seller is not a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporation restriction that could have, and no provision of applicable law or governmental regulation is reasonably likely to have, a material -18- adverse effect on the condition (financial or otherwise), business, operations or properties of the Seller, or could have such an effect on the ability of the Seller to carry out its obligations under this Agreement and the other Related Documents to which the Seller is a party, (ii) the Seller is not in default of under or with respect to any contractual obligation contract, agreement, lease or in violation of any order, rule or regulation of any governmental authority, other instrument to which default or violation may have a material adverse effect upon (i) the financial condition of the Seller is a party and which is material to the Seller's condition (financial or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31otherwise), 2011business, operations or properties, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used delivered or received any selection criteria that notice of default thereunder, and (iii) each contract, agreement, lease or other instrument to which the Seller is a party is listed on Schedule 7.
(aa) The Seller is not an "investment company" or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are materially adverse to defined in the Purchaser or its assignees.Investment Company Act of 1940, as amended. The making of the Purchases by the Purchaser, the application of the proceeds and repayment thereof by the Seller
Appears in 1 contract
Sources: Receivables Purchase and Servicing Agreement (Merisel Inc /De/)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, carry on its business as presently conducted and enter into and perform its obligations under the Assignment Agreements and this Agreement;
(ii) the execution and delivery by the Seller of the State Assignment Agreements and this Agreement have been duly authorized by all necessary corporate action on the part of Virginiathe Seller; neither the execution and delivery of the Assignment Agreements or this Agreement, and is duly qualified to do business nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of the Assignment Agreements and this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated thereby and hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer each of the Seller's interest in the Sold Receivables pursuant to Assignment Agreements and this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment Agreements, and no notice to or filing withthe Depositor, any governmental authority or regulatory body is required to be obtained, taken, given or made by in the Seller for the due execution, delivery and performance by the Seller case of this Agreement or any other document to which it is Agreement, constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generallyof creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by the Assignment Agreements or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment Agreements or this Agreement.
(eb) Each Receivable sold hereunder is an Eligible Receivable.
The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (fi) No proceeds a representation or warranty of any Purchase will be useda Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, directly the sole right or indirectly remedy of the Depositor with respect to a breach by the Seller, for Seller of such representation and warranty (other than a breach by the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U Seller of the Board representations made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii), shall be the right to enforce the obligations of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder such Transferor under any applicable representation or thereof.
(g) Sales of Sold Receivables warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Agreement will Section 1.04(b) (other than any representations and warranties made pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) by it) are applicable only to facts, conditions or events that do not constitute a valid sale, transfer, and assignment breach of any representation or warranty made by the Sold Receivables to related Transferor in the Purchaser, enforceable against creditors of, and purchasers from, the Sellerapplicable Transfer Agreement. The Seller shall have no remaining property interest in obligation or liability with respect to any Sold Receivable, Related Security breach of a representation or Collections. Immediately prior warranty made by it with respect to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim Transferred Mortgage Loans (other than any Adverse Claim arising solely as representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii)) if the result fact, condition or event constituting such breach also constitutes a breach of any action taken a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or on behalf warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller Transferred Mortgage Loans to the Purchaser in connection with this Agreement is or will be accurate in all material respects Depositor hereunder, as of its date or (except as otherwise disclosed to the Purchaser at such time) each that, as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).Closing Date:
(i) The principal place of business and chief executive office information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Seller Transferred Mortgage Loans, and the office information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Seller keeps its records or has access related Mortgaged Property is located pursuant to such records concerning insurance policies conforming to the Sold Receivables are located at requirements of the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place guidelines of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇Mac. If upon origination of the Transferred Mortgage Loan, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (TCLTC AGand such flood insurance has been made available), W.A. ▇▇▇▇▇ Company a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and Trans-Continental Leaf Tobacco Corporation SA.expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement;
(kiv) There are no actionsEach Mortgage has not been satisfied, suits cancelled, subordinated or other proceedings rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters relating of public record as of the date of recording of such Mortgage acceptable to environmental liabilitymortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Transferred Mortgage Loan, and (3) pending or threatened against or affecting the Sellersuch other matters to which like properties are commonly subject which do not, or any of its properties, that (i) if adversely determined (individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, may then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the financial condition value of the Seller related Mortgaged Property as security for the related Transferred Mortgage Loan or on the collectability of a material portion of use for which the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.premises were intended;
(lix) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of There are no mechanics’ or similar liens or claims which have been furnished filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the Purchaserrelated Mortgaged Property which are or may be liens prior to, fairly present or equal or coordinate with, the financial condition lien of the Seller related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a savings and its consolidated Subsidiaries as at such date loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the results Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the operations National Housing Act;
(xi) Each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Seller Code and its consolidated Subsidiaries for Treas. Reg. §1.860G-2;
(xii) Each Transferred Mortgage Loan at the period ended on such datetime it was made complied in all material respects with applicable local, prepared on state and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan secured by a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than Mortgaged Property located in New Jersey is a “High-Cost Home Loan” as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change defined in the businessNew Jersey Home Ownership Act effective November 27, operations, property or financial or other condition of the Seller 2003 (it being understood that N.J.S.A. 46:10B-22 et seq.); (ib) no Transferred Mortgage Loan secured by a change Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the debt ratings of the Seller does notNew Mexico Home Loan Protection Act effective January 1, in and of itself, constitute a material adverse change and 2004 (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-14h)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The the Seller is a California corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of Virginia, California and is duly qualified to do business and is in good standing in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify preserve and maintain such existence, rights, franchises, privileges and qualification would not be likely to materially adversely affect the Purchaser's rights interests of the Purchaser hereunder or in the Purchased Receivables and Related Assets or the ability of the Seller to perform its obligations hereunder.;
(b) The the execution, delivery and performance by the Seller of this Agreement and the all other instruments and documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) transactions contemplated hereby and thereby are within the Seller's corporate powers, (ii) and have been duly authorized by all necessary company corporate action (including any necessary shareholder action, (iii) do not contravene (1) which authorization is reflected in the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer official records of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.;
(c) No no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party or instrument to be delivered by it hereunder.;
(d) This this Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms;
(e) except as disclosed by the Seller in writing to the Purchaser, subject there are no actions, suits or proceedings pending, or to the knowledge of the Seller threatened, against or affecting the Seller or any of its subsidiaries, or the property of the Seller or of any of its subsidiaries, in any court, or before any arbitrator of any kind, or before or by any governmental body, which, if adversely determined, would materially adversely affect the ability of the Seller to perform its obligations under this Agreement; the Seller is not in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which do not materially adversely affect the ability of the Seller to perform its obligations under this Agreement;
(f) The execution, delivery and performance by the Seller of each Purchase Document and the carrying out of the transactions contemplated thereby does not and will not (i) violate any provision of law applicable to it, its articles or articles of incorporation or bylaws or any order, judgment or decree of any court or other agency of government binding on it, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any of its contractual obligations, (iii) result in or require the creation or imposition of any Adverse Claim of any nature whatsoever upon any of its properties or assets or (iv) require any approval of shareholders or any approval or consent of any Person under any of its contractual obligations other than approvals or consents which have been obtained.
(g) each Receivable offered for sale to the Purchaser hereunder constitutes an Eligible Receivable on the Closing Date applicable thereto, is owned by the Seller free and clear of any Adverse Claim, and upon payment of the purchase thereof by the Purchaser, the Purchaser shall acquire a valid ownership interest in such Receivable and Related Assets free and clear of any Adverse Claim;
(h) no information furnished by the Seller to the Purchaser with respect to any Purchased Receivable is inaccurate in any material respect as of the date furnished to the Purchaser;
(i) on each Closing Date, the representations and warranties set forth in the Warehousing Agreement, the "Loan Documents" (as defined therein) and the Subordinated Loan Agreement are all true and correct as if made on such Closing Date;
(j) the Purchased Receivables and contracts included in the Related Assets are legal, valid and binding obligations of the applicable Obligor, enforceable in accordance with their terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the enforcement of creditors' rights generally., or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(ek) Each Receivable sold hereunder is an Eligible Receivable.the terms of the Purchased Receivables have not been waived, modified, altered, satisfied, impaired, cancelled, subordinated or rescinded; no instrument of subordination, waiver, alteration or modification has been executed, and the related Obligor has not been released, in whole or in part, except in connection with a written assumption agreement approved in writing by and delivered to the Purchaser;
(fl) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, representations and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables warranties made by the Seller pursuant to this Agreement will and the related Obligor in each contract included in the Related Assets are true and correct in all material respects;
(m) no event has occurred that would, with the passage of time or with notice and the expiration of any grace or cure period, constitute a valid saledefault, transferbreach, violation or event of acceleration under any obligation of the Seller to the Obligor on any Purchased Receivable have not waived any such default, breach, violation or event of acceleration;
(n) the Seller is in possession of a complete set of the agreements contained in the Related Assets, except for such documents that have been delivered to the Purchaser;
(o) each Purchased Receivable is a valid, enforceable right to retain payments on the related Mortgage Loan(s) or proceeds of the foreclosure of the related Mortgages, senior to the right of any other Person, and no condition exists as to any receivable that will impair or materially delay payment thereof; and
(p) no consent of any Person is required for the assignment of the Sold Purchased Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor as of the date hereof that:
(1) The Seller is a corporation Delaware limited liability company duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(2) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified nor the consummation of the transactions herein contemplated, 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 Seller or its properties which conflict or breach would have a material adverse effect on the ability of the Seller to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights perform hereunder.;
(b3) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or date hereof;
(4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(5) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller adversely affect its ability to perform its obligations under this Agreement.
(cb) The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the Depositor shall have the right to enforce the obligations of the Seller and to the extent that the Seller fails to fulfill its contractual obligations hereunder then the Depositor shall have the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. If a Transferor fulfills its obligations under the provisions of the applicable Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Replacement Mortgage Loan for such affected Mortgage Loan. Notwithstanding the foregoing, the Depositor will enforce the representations and warranties contained in Section 1.04(b) (8), (44), (45) and (47) only against the Seller and upon such enforcement any rights and remedies of the Depositor against the related Transferor regarding such representations and warranties will be considered to be reassigned by the Depositor back to the Seller. Subject to the foregoing, the Seller represents and warrants that as of the Closing Date, as to each Mortgage Loan, that:
(1) The information set forth in the Mortgage Loan Schedule is complete, true and correct in all material respects as of the Cut-off Date;
(2) With respect to a Mortgage Loan that is not a Co-op Loan, the Mortgage creates a first lien or a first priority ownership interest in an estate in fee simple in real property securing the related Mortgage Note. With respect to a Mortgage Loan that is a Co-op Loan, the Mortgage creates a first lien or a first priority ownership interest in the stock ownership and leasehold rights associated with the cooperative unit securing the related Mortgage Note;;
(3) All payments due on or prior to the Cut-off Date for such Mortgage Loan have been made as of the Closing Date and the Mortgage Loan is not 31 days or more delinquent in payment and has not been dishonored, except that, as of the Cut-off Date, no more than approximately 2.00% of the Mortgage Loans may be between 31 days and 60 days delinquent (in each case, by aggregate Cut-off Date Principal Balance of all of the Mortgage Loans). The Seller has not advanced funds, or induced, solicited or to their actual knowledge, received any advance of funds from a party other than the owner of the related Mortgaged Property, directly or indirectly, for the payment of any amount required by the Mortgage Note or Mortgage;
(4) All taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing have been paid, or escrow funds have been established in an amount sufficient to pay for every such escrowed item which remains unpaid and which has been assessed but is not yet due and payable;
(5) The terms of the Mortgage Note and the Mortgage have not been impaired, waived, altered or modified in any respect, except by written instruments which have been recorded to the extent any such recordation is required by law, or, necessary to protect the interest of the Depositor. No authorization instrument of waiver, alteration or approval modification has been executed. No Mortgagor has been released, in whole or other action byin part, from the terms thereof except in connection with an assumption agreement and which assumption agreement is part of the Mortgage File and the terms of which are reflected in the Mortgage Loan Schedule;
(6) The Mortgage Note and the Mortgage are not subject to any right of rescission, set-off, counterclaim or defense, including, without limitation, the defense of usury, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render the Mortgage Note or Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no notice such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; and the Mortgagor was not a debtor in any state or federal bankruptcy or insolvency proceeding at the time the Mortgage Loan was originated;
(7) All buildings or other customarily insured improvements upon the Mortgaged Property are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides, against loss by fire, hazards of extended coverage and such other hazards as are provided for in the ▇▇▇▇▇▇ Mae Guides or by ▇▇▇▇▇▇▇ Mac, as well as all additional requirements set forth in the Pooling Agreement. All such insurance policies contain a standard mortgagee clause naming the Seller, its successors and assigns as loss payee and all premiums thereon have been paid. All such standard hazard policies are in full force and effect. If required by the Flood Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac requirements, as well as all additional requirements set forth in the Pooling Agreement. Such policy was issued by an insurer acceptable under ▇▇▇▇▇▇ Mae or filing with▇▇▇▇▇▇▇ Mac guidelines. The Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to maintain such insurance at the Mortgagor’s cost and expense and to seek reimbursement therefor from the Mortgagor;
(8) Any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity, disclosure and all applicable predatory and abusive lending laws applicable to the Mortgage Loan have been complied with in all material respects. To the best of the Seller’s knowledge, any governmental authority and all statements or regulatory body is acknowledgments required to be obtained, taken, given or made by the Seller for Mortgagor relating to such requirements which were in the due execution, delivery and performance Mortgage file when such Mortgage Loan was acquired by the Seller are and will remain in the Mortgage File;
(9) The Mortgage has not been satisfied, canceled or subordinated, in whole or in part, or rescinded, and the Mortgaged Property has not been released from the lien of this Agreement the Mortgage, in whole or in part nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(10) The related Mortgage is a valid, subsisting, enforceable and perfected first lien on the Mortgaged Property, including for Mortgage Loans that are not Co-op Loans, all buildings on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems affixed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing securing the Mortgage Note’s original principal balance. The Mortgage and Mortgage note do not contain any evidence of any security interest or other document interest or right thereto. Such lien is free and clear of all adverse claims, liens and encumbrances having priority over the lien of the Mortgage, subject only to (1) the lien of non-delinquent current real property taxes and assessments not yet due and payable, (2) covenants, conditions and restrictions, rights of way, easements and other matters of the public record as of the date of recording which are acceptable to mortgage lending institutions generally and either (A) which are referred to or otherwise considered in the appraisal made for the originator of the Mortgage Loan, or (B) which do not adversely affect the appraised value of the Mortgaged Property as set forth in such appraisal, and (4) other matters to which it is a party like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage or the use, enjoyment, value or marketability of the related Mortgaged Property. Any security agreement, chattel mortgage or equivalent document related to and delivered by it hereunder.in connection with the Mortgage Loan establishes and creates a valid, subsisting, enforceable and perfected first lien and first priority security interest, in each case, on the property described therein, and the Seller has the full right to sell and assign the same to the Depositor;
(d11) This Agreement constitutes The Mortgage Note and the related Mortgage are original and genuine and each is the legal, valid and binding obligation of the Seller maker thereof, enforceable against the Seller in all respects in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization and other laws of general application affecting the rights of creditors and by general equitable principles. All parties to the Mortgage Note and the Mortgage had the legal capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have been duly and properly executed by such parties. To the best of the Seller’s knowledge, the Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage is in an individual capacity or family trust that is guaranteed by a natural person. No fraud, error, omission, misrepresentation, negligence or similar occurrence with respect to a Mortgage Loan has taken place on the part of Seller or the Mortgagor, or, on the part of any other similar laws affecting creditor's rights generally.party involved in the origination of the Mortgage Loan. The proceeds of the Mortgage Loan have been fully disbursed and there is no requirement for future advances thereunder, and any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with. All costs, fees and expenses incurred in making or closing the Mortgage Loan and the recording of the Mortgage were paid or are in the process of being paid, and the Mortgagor is not entitled to any refund of any amounts paid or due under the Mortgage Note or Mortgage;
(e12) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereundertransfer and assignment to the Depositor on the Closing Date, the Mortgage Loan, including the Mortgage Note and the Mortgage, were not subject to an assignment or pledge, and the Seller is had good and marketable title to and was the legal sole owner thereof and beneficial owner of each such Sold Receivable, had full right to transfer and sell the Mortgage Loan to the Depositor free and clear of any Adverse Claim (encumbrance, equity, lien, pledge, charge, claim or security interest and has the full right and authority subject to no interest or participation of, or agreement with, any other than any Adverse Claim arising solely as party, to sell and assign the result of any action taken by or on behalf Mortgage Loan pursuant to this Agreement and following the sale of the Purchaser). When Mortgage Loan, the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto Depositor will own such Mortgage Loan free and clear of any Adverse Claim arising as the result of any action taken encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest;
(13) Each Mortgage Loan that is not taken a Co-op Loan is covered by the Seller, and no effective financing statement an ALTA lender’s title insurance policy or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security generally acceptable form of policy or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or insurance acceptable to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. issued by a title insurer acceptable to ▇▇▇▇▇▇ Company Mae or ▇▇▇▇▇▇▇ Mac and Trans-Continental Leaf Tobacco Corporation SA.qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring (subject to the exceptions contained in (10)(1), (2) and (3) above) the Seller, its successors and assigns, as to the first or second priority lien of the Mortgage, as applicable, in the original principal amount of the Mortgage Loan. Where required by applicable state law or regulation, the Mortgagor has been given the opportunity to choose the carrier of the required mortgage title insurance. The Seller is the sole insured of such lender’s title insurance policy, and such lender’s title insurance policy is in full force and effect and will be in full force and effect upon the consummation of the transactions contemplated by this Agreement. No claims have been made under such lender’s title insurance policy, and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything which would impair the coverage of such lender’s title insurance policy;
(k14) There is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event permitting acceleration; and neither the Seller nor any prior mortgagee has waived any default, breach, violation or event permitting acceleration;
(15) There are no actions, suits mechanics’ or other proceedings (including matters relating to environmental liability) pending similar liens or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of claims which have been furnished filed for work, labor or material (and no rights are outstanding that under law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to or equal to the Purchaser, fairly present the financial condition lien of the Seller and its consolidated Subsidiaries as at such date and related Mortgage;
(16) All improvements subject to the results Mortgage which were considered in determining the appraised value of the operations Mortgaged Property lie wholly within the boundaries and building restriction lines of the Seller Mortgaged Property (and its consolidated Subsidiaries for wholly within the period ended on such date, prepared on project with respect to a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Codecondominium unit) and not for or no improvements on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.adjoining propert
Appears in 1 contract
Representations and Warranties of the Seller. On The Seller hereby represents, warrants and covenants to the Issuer, the Depositor, the Owner Trustee, the Indenture Trustee, the Note Insurer and the Owners that as of the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of Virginia, governing its creation and existence and is duly qualified to do business in every good standing in each jurisdiction where in which the nature of its business, or the properties owned or leased by it make such qualification necessary. The Seller has all requisite authority to own and operate its properties, to carry out its business requires it as presently conducted and as proposed to be so qualified, except where failure conducted and to so qualify would not be likely enter into and discharge its obligations under this Agreement and the other Operative Documents to materially adversely affect the Purchaser's rights hereunderwhich it is a party.
(b) The execution, execution and delivery and performance by the Seller of this Agreement and the other documents Operative Documents to be delivered which it is a party by it hereunder, including the Seller's sale Seller and its performance and compliance with the terms of Receivables hereunder this Agreement and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary company action, (iii) do corporate action on the part of the Seller and will not contravene (1) violate the Seller's organizational documentsArticles of Incorporation and Bylaws or constitute a default (or an event which, (2with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any lawmaterial contract, agreement or other instrument to which the Seller is a party or by which the Seller is bound or violate any statute or any order, rule or regulation applicable to the Sellerof any court, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on governmental agency or affecting body or other tribunal having jurisdiction over the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerproperties.
(c) No authorization or approval or This Agreement and the other action byOperative Documents to which the Seller is a party, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionother parties hereto and thereto, delivery and performance by the Seller of this Agreement or any other document to which it is each constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legalvalid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its termsthe terms hereof and thereof, subject to except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's creditors' rights generallygenerally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) 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 governmental agency, which default would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or the consequences of which would materially and adversely affect its performance hereunder and under the other Operative Documents to which the Seller is a party.
(e) Each Receivable sold No litigation is pending with respect to which the Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which litigation might have consequences that would prohibit its entering into this Agreement or any other Operative Documents to which it is a party or that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder and under the other Operative Documents to which the Seller is an Eligible Receivablea party.
(f) No proceeds certificate of any Purchase will be usedan officer, directly statement furnished in writing or indirectly report delivered pursuant to the terms hereof by the SellerSeller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, for the purpose, whether immediate, incidental statement or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofreport not misleading.
(g) Sales of Sold Receivables by The statements contained in the Prospectus Supplement which describe the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, matters or activities for which the Seller is responsible in accordance with the legal Operative Documents or which are attributable to the Seller therein are true and beneficial owner correct in all material respects, and the Prospectus Supplement does not contain any untrue statement of a material fact with respect to the Seller required to be stated therein or necessary to make the statements contained therein with respect to the Seller, in light of the circumstances under which they were made, not misleading. The Prospectus Supplement does not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. There is no fact known to the Seller that materially adversely affects or in the future may (so far as the Seller can now reasonably foresee) materially adversely affect the Seller or the Home Equity Loans that has not been set forth in the Prospectus Supplement.
(h) Upon the receipt of each Home Equity Loan (including the related Mortgage Note) and other items of the Trust Estate by the Indenture Trustee, the Issuer will have good title to such Sold Receivable, Home Equity Loan (including the related Mortgage Note) and such other items of the Trust Estate free and clear of any Adverse Claim lien, charge, mortgage, encumbrance or rights of others, except as set forth in Section 2.04(b)(ix) (other than any Adverse Claim arising solely as liens which will be simultaneously released (and except for the result of any action taken by or on behalf lien of the PurchaserIndenture). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place Neither the Seller nor any affiliate thereof will report on any financial statement any part of business the Servicing Fee as an adjustment to the sales price of the Home Equity Loans.
(j) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and chief executive office licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the Operative Documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other Operative Documents on the part of the Seller and the office where performance by the Seller keeps of its records or has access obligations under this Agreement and such of the other Operative Documents to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 monthswhich it is a party.
(jk) The origination practices used by the Seller with respect to the Home Equity Loans have been, in all material respects, legal, proper, prudent and customary in the mortgage lending business.
(l) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(m) Neither the Owner Trustee nor the Seller has any obligation to register the Trust as an investment company under the Investment Company Act of 1940, as amended.
(n) The Seller is not known insolvent, nor will it be made insolvent by and does not use the transfer of the Home Equity Loans, nor is the Seller aware of any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SApending insolvency.
(ko) There are no actionsThe Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Home Equity Loans.
(p) The Seller did not sell any interest in any Home Equity Loan with any intent to hinder, suits delay or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or defraud any of its properties, that creditors.
(iq) if adversely determined (individually or in the aggregate), may have a No material adverse effect on change affecting any security for the financial condition Notes has occurred prior to delivery of and payment for the Seller or on the collectability of a material portion of the Sold Receivables or Notes.
(iir) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of under any contractual agreement involving financial obligations or on any outstanding obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) would materially adversely impact the financial condition or operations of the Seller or (ii) legal documents associated with the insurance of any Eligible Receivables under the Policytransaction contemplated by this Agreement.
(ls) The balance sheets To the best knowledge of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this AgreementSeller, there has been no material adverse change in any information submitted by the businessSeller in writing to the Note Insurer with respect to the transactions contemplated by this Agreement (unless such information was subsequently supplemented in writing). It is understood and agreed that the representations and warranties set forth in this Section 2.03 shall survive delivery of the respective Home Equity Loans to the Indenture Trustee. Upon discovery by any of the Issuer, operationsthe Depositor, property the Servicer, the Custodian, any Sub-Servicer, any Special Servicer, any Owner, the Seller, the Note Insurer or financial the Indenture Trustee (each, for purposes of this paragraph, a "party") of a breach of any of the representations and warranties set forth in this Section 2.03 which materially and adversely affects the interests of the Owners or the interests of the Note Insurer, the party discovering such breach shall give prompt written notice to the other condition parties. The Seller hereby covenants and agrees that within 60 days of its discovery or its receipt of notice of breach, it shall cure such breach in all material respects or, with respect to a breach of clause (h) above, the Seller may (or may cause an affiliate of the Seller (it being understood that to) on or prior to the second Monthly Remittance Date next succeeding such discovery or receipt of notice (i) substitute in lieu of any Home Equity Loan not in compliance with clause (h) a change Qualified Replacement Mortgage and, if the outstanding principal amount of such Qualified Replacement Mortgage as of the applicable Replacement Cut-Off Date is less than the Loan Balance of such Home Equity Loan as of such Replacement Cut-Off Date, deliver an amount (a "Substitution Amount") equal to such difference together with the aggregate amount of (A) all Delinquency Advances and Servicing Advances theretofore made with respect to such Home Equity Loan and (B) all Delinquency Advances which the Servicer has theretofore failed to remit with respect to such Home Equity Loan to the Servicer for deposit in the debt ratings of the Seller does not, in Principal and of itself, constitute a material adverse change and Interest Account or (ii) this representation is made only as purchase such Home Equity Loan from the Issuer at the Loan Purchase Price, which purchase price shall be delivered to the Servicer for deposit in the Principal and Interest Account. The Seller shall deliver an Officer's Certificate to the Indenture Trustee and the Note Insurer concurrently with the delivery of a Qualified Replacement Mortgage pursuant to Sections 2.03, 2.04 and 2.06 stating that such Home Equity Loan meets the requirements of the date definition of this Agreement).
(m) There is no pending or, a Qualified Replacement Mortgage and that all other conditions to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables substitution thereof have been prepared and filed.
(p) The sales of Receivables by the Seller satisfied. Any Home Equity Loan as to the Purchaser which repurchase or substitution was delayed pursuant to this AgreementSection shall be repurchased or substituted for (subject to compliance with Section 2.03, and all other transactions between 2.04 or 2.06, as the Seller and case may be) upon the Purchaser, have been and will be made in good faith and without intent occurrence of a default or imminent default with respect to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the PurchaserHome Equity Loan.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Imc Home Equity Loan Owner Trust 1998-6)
Representations and Warranties of the Seller. On The Seller makes the Closing Date, as well as on each Purchase Date, the Seller represents following representations and warrants as followswarranties:
(a) The Seller is a corporation limited liability company duly organized and organized, validly existing and in good standing under the laws of the State of VirginiaNevada, is duly qualified to do business in and is in good standing under the laws of the State, is not in violation of any provision of its articles of formation and its operating agreement, has the power and authority to own its property and assets, to carry on its business as now being conducted by it and to execute, deliver and perform this Agreement. To the best of the Seller’s knowledge, the Seller is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunderin which such qualification is necessary.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within transactions by the Seller's powers, (ii) Seller herein contemplated have been duly authorized by all necessary company action, (iii) do material requisite action on the part of the Seller and will not contravene (1) the Seller's organizational documents, (2) violate any provision of law, rule any order or regulation applicable to judgment of any court or agency of government, or the certificate of incorporation or by-laws of the Seller, (3) or any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on material indenture, agreement or affecting other instrument to which the Seller is a party or its property by which it or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties property is subject to or bound, or be in conflict with or result in a breach of or constitute (except for the transfer with due notice and/or lapse of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellertime) a material default under any such indenture, agreement or other instrument.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditor's creditors’ rights generallygenerally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(md) There is no substantive action or proceeding pending or, to the best knowledge of the Seller, threatened by or against the Seller by or before any court or administrative agency that might adversely affect the ability of the Seller to perform its obligations under this Agreement and all material authorizations, consents and approvals of governmental bodies or agencies required to be obtained by the Seller as of the date hereof in connection with the execution and delivery of this Agreement or in connection with the performance of the obligations of the Seller hereunder have been obtained.
(e) The Seller is solvent. No action or proceeding affecting has been instituted, with respect to the Seller, by the Seller or by another person or entity of a bankruptcy, reorganization, moratorium, liquidation or similar insolvency proceeding or other relief under any of bankruptcy or insolvency law affecting creditor’s rights or petition have been presented or instituted for its Subsidiaries before any court, governmental agency winding-up or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)liquidation.
(nf) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect There are no Uncontrollable Force events as of the Purchaser's ownership interest date of this Agreement. The claims of the occurrence of an Uncontrollable Force event under and as defined in the Receivables have been prepared and filedPrior Agreement are hereby waived.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Firm Energy Purchase Agreement
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to the other parties hereto as followsof the Closing Date that:
(a) The Seller is a corporation has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of VirginiaFlorida, with full power and is duly qualified authority to do business in every jurisdiction where the nature of own its assets and conduct its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunderas presently being conducted.
(b) The Seller has the full entity power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance by the Seller of this Agreement and the other documents (including all instruments of transfer to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has ) by the Seller and the consummation of the transactions contemplated hereby have been duly executed and delivered by the Sellervalidly authorized.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the a legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditor's the enforcement of creditors’ rights generallyin general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the sale of the Mortgage Loans by the Seller, the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, the certificate of incorporation, bylaws or any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject, or impair the ability of the Issuing Entity to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) Each Receivable sold hereunder No consent, approval, authorization or order of any court or governmental agency or body is an Eligible Receivablerequired for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement or the sale of the Mortgage Loans as evidenced by the consummation of the transactions contemplated by this Agreement, or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Date.
(f) No proceeds of any Purchase will be usedThere is no action, directly suit, proceeding or indirectly by the Seller, for the purpose, whether immediate, incidental investigation pending or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by its knowledge threatened against the Seller pursuant to this Agreement will constitute a valid salewhich, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (either individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or result in any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property financial condition, properties or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge assets of the Seller, threatened action or proceeding affecting in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any of its Subsidiaries before any courtaction taken or contemplated herein, governmental agency or arbitrator which is reasonably would be likely to have a material adverse effect, except as disclosed in impair materially the financial statements or filings referred ability of the Seller to in Section 4.01(l)perform under the terms of this Agreement.
(ng) No transaction contemplated hereby requires compliance with The transfer, assignment and conveyance of the Mortgage Loans by the Seller pursuant to this Agreement are not subject to the bulk transfer or any bulk sales act or similar lawstatutory provisions in effect in any applicable jurisdiction.
(oh) All financing statements necessary in order The Seller is solvent and the sale of the Mortgage Loans will not cause the Seller to perfect become insolvent. The sale of the Purchaser's ownership interest in Mortgage Loans is not undertaken to hinder, delay or defraud any of the Receivables have been prepared and filedSeller’s creditors.
(pi) The sales of Receivables consideration received by the Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair consideration and reasonably equivalent value for the Mortgage Loans.
(j) The Seller has determined that the disposition of the Mortgage Loans from Seller to the Purchaser Depositor pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and Agreement will be made in good faith and without afforded sale treatment for accounting purposes, all on a non-consolidated basis.
(k) The Seller has not transferred the Mortgage Loans to the Depositor with any intent to hinder, delay or defraud creditors any of its creditors.
(l) The Seller has not dealt with any broker, investment banker, agent or other Person that may be entitled to any commission or compensation in the connection with the sale of the Seller. Each such sale has been made for “reasonably equivalent value” Mortgage Loans.
(as such term is used in Section 548 of m) Immediately prior to the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed transfer by the Seller to the PurchaserDepositor of each Mortgage Loan, the Seller had good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature. On and after the transfer by the Seller to the Depositor of each Mortgage Loan, the Depositor will have good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature.
(qn) In selecting None of this Agreement, the Eligible Receivables information set forth in the Mortgage Loan Schedules attached hereto and the information contained in the related electronic data file delivered to the Master Servicer by the Seller, nor any statement, report or other document furnished or to be sold hereunder, furnished by or on behalf of the Seller has pursuant to this Agreement or in connection with the transactions contemplated hereby, contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein not used any selection criteria that are materially adverse misleading.
(o) The information about the Seller under the heading “The Sponsor” in the Prospectus relating to the Purchaser or its assigneesSeller, as of the respective dates of the preliminary prospectus supplement and the prospectus supplement, and as of the Closing Date, does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First NLC Securitization, Inc.)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge sole right or remedy of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller to of such representation and warranty (other than a breach by the Purchaser Seller of the representations and warranties made pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and the Purchaser, have been and will 1.04(b)(viii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 The Depositor acknowledges and agrees that the representations and warranties of the United States Bankruptcy CodeSeller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not for constitute a breach of any representation or on account warranty made by the Transferor in the Transfer Agreement or Bring Down Letter. The Seller shall have no obligation or liability with respect to any breach of “antecedent debt”(as a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such term used breach also constitutes a breach of a representation or warranty made by the Transferor in Section 547 the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the United States Bankruptcy Code) owed Transfer Agreement and the Bring Down Letter by substituting for the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderaffected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller has not used any selection criteria that are materially adverse shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the Purchaser foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of February 14, 2006:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or its assigneesdates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser, as to the Company, itself and with respect to its Shares, as follows:
(a) The Seller is a corporation duly organized and validly existing under the laws Shares constitute all of the State shares of VirginiaCompany Common Stock beneficially owned (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, and is duly qualified to do business in every jurisdiction where as amended), directly or indirectly, by the nature Seller, other than 2,200 shares of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunderCompany Common Stock owned by ▇▇▇ ▇▇▇▇▇▇▇▇.
(b) The execution and delivery of this Agreement by the Seller does not, and the performance by the Seller of its obligations hereunder will not, constitute a violation of, conflict with, result in a default (or an event which, with notice or lapse of time or both, would result in a default) under, or result in the creation of any lien on any of the Shares under (i) any contract, commitment, agreement, understanding, arrangement or restriction of any kind to which the Seller is a party or by which the Seller is bound, (ii) any judgment, writ, decree, order or ruling applicable to the Seller, or (iii) the organizational documents of such Seller, if applicable.
(c) The Seller has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) transactions contemplated hereby have been duly and validly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer notices and filings referenced in paragraph (d) below, no other actions on the part of the Seller's interest Seller are required in order to consummate the Sold Receivables pursuant to this Agreement)transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionPurchaser, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation agreement of the Seller Seller, enforceable against the Seller in accordance with its terms, subject except to the extent that enforceability may be limited by applicable bankruptcy, organization, insolvency, reorganization, moratorium or other similar laws affecting creditor's the enforcement of creditors' rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(d) Neither the execution and delivery of this Agreement nor the performance by the Seller of its obligations hereunder will (i) violate any order, writ, injunction or judgment applicable to the Seller or (ii) violate any law, decree, statute, rule or regulation applicable to the Seller or require any consent, authorization or approval of, filing with or notice to, any court, administrative agency or other governmental body or authority, other than any required notices or filings pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the "HSR Act") or the federal securities laws.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be usedThe Seller owns good, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, valid and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables marketable title to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold ReceivableShares, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by and all mortgages, liens, encumbrances, charges, claims, restrictions, pledges, security interests or on behalf impositions. Upon delivery of the Purchaser). When Shares to the Purchaser makes a Purchase it shall acquire at the closing and upon the Purchaser's payment therefor in accordance with Section 1 hereto, good and valid and perfected first priority ownership of each Sold Receivabletitle to the Shares, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken all mortgages, liens, encumbrances, charges, claims, restrictions, pledges, security interests or not taken by the Sellerimpositions, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller pass to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State state of Virginia, Delaware and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to do so qualify would could not reasonably be likely expected to materially adversely affect the Purchaser's rights hereunderresult in a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables and Participation Interests hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1) the Seller's organizational documentscharter or by-laws, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables Purchased Assets pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to be delivered by it hereunder, except for the filing of UCC financing statements referred to herein.
(d) Each of the Transaction Documents to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the rights generallyof creditors generally and general equitable principles (whether considered in a proceeding at law or in equity).
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller Purchases made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables Purchased Assets to, or contributions of the Purchased Assets to the capital of, the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to Purchased Asset.
(i) The fair value of the sale property of each Sold Receivable hereunder, the Seller is greater than the legal total amount of liabilities, including contingent liabilities, of the Seller, (ii) the present fair salable value of the assets of the Seller is not less than the amount that will be required to pay all probable liabilities of the Seller on its debts as they become absolute and beneficial owner matured, (iii) the Seller does not intend to, and does not believe that it will, incur debts or liabilities beyond the Seller's abilities to pay such debts and liabilities as they mature and (iv) the Seller is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which the Seller's property would constitute unreasonably small capital.
(g) Except as set forth in Schedule 3 hereto (or as otherwise disclosed by the Parent in publicly available SEC filings), there is no pending or threatened action, investigation or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which if determined adversely to any of them, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(h) No proceeds of any Purchase will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable (including, without limitation, each Participated Receivable) sold and/or contributed by the Seller and characterized in any Seller Report (or, if applicable, as of a date certain specified in such Sold report) as an Eligible Receivable is, as of the date of such Seller Report, an Eligible Receivable. Each Purchased Asset, together with the Related Security, is owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Purchased Asset and the Related Security and the Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken or not taken by the SellerPurchaser), and no effective financing statement or other instrument similar in effect covering any Sold ReceivablePurchased Asset, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of Seller in accordance with the Originator Purchase Agreement, in favor of Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by the Purchaser or on behalf of those which relate to security interests that are subject to the PurchaserIntercreditor Agreement.
(hk) All Each Seller Report (if prepared by the Seller, or to the extent that information and each reportcontained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time (whether before or after the date of this Agreement) by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (or, if applicable, as of a date certain specified in such report), and does not no such document contains or will contain any untrue statement of a material fact or omits or will omit any information to state a material fact necessary in order to make the information statements contained therein therein, in the light of the circumstances under which they were made, not misleading under the circumstances)misleading.
(il) The principal place of business and chief executive office of the Seller and the office where the such Seller keeps its records or has access to such records concerning the Sold Receivables Purchased Assets are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jm) The names and addresses of all the Deposit Banks and Account Banks, together with the post office boxes and account numbers of the Lock-Boxes, Deposit Accounts at such Deposit Banks, and Governmental Entity Receivables Accounts at such Account Banks are specified in Exhibit B (as the same may be updated from time to time pursuant to Section 5.01(g)). The Lock-Boxes, Deposit Accounts and Governmental Entity Receivables Accounts are the only post office boxes and bank accounts into which Collections of Receivables and Participation Interests are deposited or remitted.
(n) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements With respect to any programs used by the Seller in the servicing of the Receivables and Participation Interests, no sublicensing agreements are necessary in order connection with the designation of a new Collection Agent pursuant to perfect Section 6.01 so that such new Collection Agent shall have the Purchaser's ownership interest in benefit of such programs (it being understood that, however, the Receivables have been prepared Collection Agent, if other than the Seller, shall be required to be bound by a confidentiality agreement reasonably acceptable to the Seller (on behalf of itself and filedeach of the Originators)).
(p) The sales transfers of Receivables Purchased Assets by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the such Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables The Seller has timely filed or caused to be sold hereunderfiled all required income tax and sales tax returns and reports and all other material tax returns and reports required to have been filed and has paid or caused to be paid all material taxes due pursuant to such returns or pursuant to any assessment received by the Seller, except where the payment of any such taxes is being contested in good faith by appropriate proceedings and for which the Seller has not used any selection criteria that are materially adverse to set aside on its books adequate reserves. The charges, accruals and reserves on the Purchaser books of the Seller in respect of such taxes or its assigneescharges imposed by all Governmental Entities are, in the opinion of the Seller, adequate for the payment thereof.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as followsthat:
(a) The Seller is a corporation duly organized and validly existing under owns fee simple, marketable record title to the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.Real Property;
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending existing or, to the best knowledge of Seller's actual knowledge, threatened, actions, suits, investigations or proceedings of any kind or nature whatsoever, legal or equitable, in any way affecting the Property or any portion or portions thereof, or the ownership or use of the SellerProperty, threatened action in any court or proceeding affecting the Seller before or by any federal, state, county, municipal or quasi-governmental department, commission, board, bureau, agency or any of its Subsidiaries before any courtother governmental or quasi-governmental instrumentality;
(c) The Seller is a corporation duly organized, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed validly existing and in good standing in the financial statements or filings referred State of Delaware, is authorized to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest transact business in the Receivables have been prepared State of Florida, has duly authorized the execution and filed.
(p) The sales performance of Receivables by the Seller to the Purchaser pursuant to this Agreement, such execution and all other transactions between the Seller performance will not violate any term of its governing documents, and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, that the Seller has not used the power and authority to sell and convey the Property as provided in this Agreement and to carry out the Seller's obligations hereunder and that the person signing this Agreement on behalf of Seller is authorized to do so;
(d) The Seller has no actual knowledge that any selection criteria that are materially adverse present default or breach exists under Article VI(d) of this Agreement or under any mortgage, lien, pledge, or other encumbrance encumbering the Property or any covenant, condition, restriction, right-of-way, reservation, lease, license, agreement or easement (except for various encroachments onto easements located on the Property as may be reflected on a survey) which may affect the Property or any portion or portions thereof;
(e) No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or any other bankruptcy laws is pending against, or to the Purchaser best of Seller's actual knowledge, threatened against or its assigneescontemplated by the Seller;
(f) Seller has not received any notice of any violation of any Environmental Laws (as hereinafter defined) applicable to the Property or Seller's use thereof. To the best of Seller's actual knowledge, (i) the Property is in substantial compliance with all Environmental Laws and (ii) that, to the best of Seller's actual knowledge, other than for such Hazardous Materials located on the Property in connection with the operation and maintenance of the Property and/or the businesses located thereon, no Hazardous Materials (as hereinafter defined) are or have been used, handled, manufactured, generated, produced, stored, treated, processed, transferred or disposed of, located on or beneath the surface of the Real Property, or on or within the improvements to the Real Property in violation of any law, rule, regulation, ordinance, order, consent order or directive of any local, state or federal government.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ecc International Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser, as followsof the Closing Date or, as applicable, as of each Subsequent Transfer Date (or if otherwise specified below, as of the date so specified):
(a) As to the Seller:
(ai) The Seller is a corporation national banking association duly organized and validly existing under the laws of the State United States of Virginia, America and is duly qualified in compliance with the laws of each state in which any Mortgaged Property is located to do business in every jurisdiction where the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.each Mortgage Loan;
(bii) The executionSeller has the power and authority to make, delivery execute, deliver and performance by the Seller of perform its obligations under this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This each Subsequent Transfer Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party and all of the transactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to be delivered by it hereunder.authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(diii) The Seller is not required to obtain the consent of any other Person or any consents, licenses, approvals or authorizations from, or registrations or declarations with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement or each such Subsequent Transfer Agreement, except for such consents, licenses, approvals or authorizations, or registrations or declarations, as shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer Agreement to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and each such Subsequent Transfer Agreement will not violate the Seller's Articles of Association or Bylaws or constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the material breach of, any material contract, agreement or other instrument to which the Seller is a party or which may be applicable to the Seller or any of its assets;
(v) There are no pending or, to the best of the Seller's knowledge, threatened, actions, suits, proceedings or investigations before any court, tribunal, administrative agency, arbitrator or governmental body that, if decided adversely, would materially and adversely affect (A) the condition (financial or otherwise), business or operations of the Seller, (B) the ability of the Seller to perform its obligations under, or the validity or enforceability of, the Basic Documents to which it is a party or (C) the transactions contemplated by this Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to which it is a party constitutes the a legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), and by public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the Purchaser of all right, title and interest of the Seller in and to the Initial Mortgage Loans, including the Cut-Off Date Principal Balances now existing and all Additional Balances thereafter arising to and including the day immediately preceding the Rapid Amortization Period, all monies due or to become due with respect thereto, and all proceeds of such Cut-Off Date Principal Balances with respect to the Initial Mortgage Loans; and this Agreement and the related Subsequent Transfer Agreement, when executed and delivered, will constitute a valid transfer and assignment to the Purchaser of all right, title and interest of the Seller in and to the Subsequent Mortgage Loans, including the Cut-Off Date Principal Balances of the Subsequent Mortgage Loans, all monies due or to become due with respect thereto, and all proceeds of such Cut-Off Date Principal Balances; and
(viii) 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 governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially adversely affect its performance hereunder.
(b) As to each Initial Mortgage Loan (except as otherwise specified below) as of the Closing Date, or as to each Subsequent Mortgage Loan (except as otherwise specified below) as of the related Subsequent Transfer Date:
(i) The information pertaining to each Mortgage Loan set forth in the Mortgage Loan Schedule delivered by the Seller was true and correct in all material respects as of the date or dates respecting which such information is initially furnished;
(ii) Each Mortgaged Property is improved by a residential dwelling, which, to the best of the Seller's knowledge, does not constitute property other than real property under state law;
(iii) Each Mortgage Loan is being serviced by the Seller and there was only one originally executed Loan Agreement not stamped as a duplicate copy with respect to each such Mortgage Loan;
(iv) The Loan Agreement with respect to each Mortgage Loan bears an adjustable Loan Rate;
(v) Immediately prior to the transfer and assignment herein contemplated or under the related Subsequent Transfer Agreement, as applicable, the Seller held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Seller subject to no liens (other than, with respect to any Mortgage Loan in a (A) second lien position, the lien of the related first mortgage and (B) third lien position, the lien of the related first mortgage and the related second mortgage), charges, mortgages, encumbrances or rights of others or other liens which will not be released simultaneously with such transfer and assignment and has full right and authority, under all governmental and regulatory bodies having jurisdiction over the ownership of the applicable Mortgage Loans to sell and assign the same pursuant to this Agreement or the related Subsequent Transfer Agreement, as applicable;
(vi) To the best of the Seller's knowledge, there is no delinquent recording or other tax or fee or assessment lien on any Mortgaged Property, and each Mortgaged Property is free of material damage and is in good repair;
(vii) No Mortgage Loan is subject to any right of rescission, valid set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Loan Agreement or the Mortgage relating to any Mortgage Loan, or the exercise of any right thereunder, render either such Loan Agreement or such Mortgage unenforceable in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(viii) To the best of the Seller's knowledge, each Mortgage Loan at the time it was made and the related Loan Agreement complied in all material respects with applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure, recording and all applicable predatory lending laws;
(ix) A policy of hazard insurance and flood insurance, if applicable, was required from the Mortgagor for the Mortgage Loan when the Mortgage Loan was originated;
(x) Each Mortgage Loan is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the enforcement of creditors' rights generally.generally and by general principles of equity (whether considered in a proceeding or action in equity or at law);
(exi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994. Furthermore, no Mortgage Loan either currently has, or in the future will have, single premium life provisions as part of the Loan Agreement;
(xii) Each Receivable sold hereunder is Initial Mortgage Loan has an Eligible Receivable.associated CLTV of no higher than 100%;
(fxiii) No proceeds of any Purchase will be used, directly There is no proceeding pending or indirectly by the Seller, threatened for the purpose, whether immediate, incidental total or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U partial condemnation of the Board of Governors Mortgaged Property, nor is such a proceeding currently occurring;
(xiv) The related Loan Agreement is not and has not been secured by any collateral, pledged account or other security except the lien of the Federal Reserve System corresponding Mortgage;
(xv) With respect to each Initial Mortgage Loan and Subsequent Mortgage Loan, as applicable, the related Mortgage File contains or will contain each of the United States of America, as the same is from time documents and instruments specified to time in effect, and all official rulings and interpretations thereunder or thereof.be included therein;
(gxvi) Sales of Sold Receivables by the Seller pursuant With respect to this Agreement will constitute each Mortgage Loan that is not a valid salefirst mortgage loan, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
either (i) The principal place of business and chief executive office no consent for the Mortgage Loan is required by the holder or holders of the Seller related prior lien, (ii) such consent has been obtained and is contained in the office where related Mortgage File or (iii) no consent for the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.Mortgage Loan was required by relevant law;
(jxvii) The Seller Mortgaged Property is not known by located in the state identified in the Mortgage Loan Schedule and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.consists of a single parcel of real property with a residential dwelling erected thereon;
(kxviii) There are no actionsThe related Mortgage contains customary and enforceable (subject to clause (x)) provisions which render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Sellerincluding, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability case of a material portion Mortgage designated as a deed of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any ordertrust, rule or regulation of any governmental authorityby trustee's sale, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) otherwise by judicial foreclosure. There is no pending or, homestead or other exemption available to the Mortgagor which would materially interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage;
(xix) To the best knowledge of the Seller's knowledge, threatened action there is no default, breach, violation or proceeding event of acceleration existing under the Mortgage or the related Loan Agreement and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(xx) At origination, each Initial Mortgage Loan has a draw period of not less than 60 months;
(xxi) The Loan Agreement with respect to each Initial Mortgage Loan bears an adjustable Loan Rate that equals a rate per annum of no less than Prime minus 0.760% for the Mortgage Loans in Loan Group I and Prime minus 1.250% for the Mortgage Loans in Loan Group II;
(xxii) To the best of the Seller's knowledge, there are no mechanics' or similar liens or claims which have been filed for work, labor or material affecting the Seller related Mortgaged Property which are, or any may be liens prior or equal to the lien of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effectthe related Mortgage, except as disclosed in the financial statements or filings liens which are fully insured against by a title insurance policy referred to in Section 4.01(l).clause (xxiv) below;
(nxxiii) No transaction contemplated hereby requires compliance with any bulk sales act As of the Cut-Off Date or similar law.the related Subsequent Cut-Off Date, as applicable, no Mortgage Loan was 30 days or more delinquent in payment of principal or interest or the subject of a bankruptcy proceeding;
(oxxiv) All financing statements A title search or other assurance of title customary in the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each original Mortgage was recorded, and all subsequent assignments of the original Mortgage required to be delivered to the Servicer pursuant to Section 2.01 have been recorded in the appropriate jurisdictions wherein such recordation is necessary in order to perfect the Purchaser's ownership interest lien thereof (or are in the Receivables have been prepared and filed.process of being recorded in accordance with local law);
(pxxvi) The sales of Receivables by Seller has not transferred the Seller Mortgage Loans to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without with any intent to hinder, delay or defraud creditors any of its creditors;
(xxvii) No selection procedure reasonably believed by the Seller to be adverse to the interests of the Securityholders was utilized in selecting the Mortgage Loans;
(xxviii) The Minimum Monthly Payment with respect to any Mortgage Loan is not less than the interest accrued at the applicable Loan Rate on the average daily Principal Balance during the interest period relating to the date on which such Minimum Monthly Payment is due;
(xxix) The Seller has not received a notice of default of any senior mortgage loan related to a Mortgaged Property which has not been cured by a party other than the Seller. Each such sale ;
(xxx) No instrument of release or waiver has been made for “reasonably equivalent value” executed in connection with the Mortgage Loans, and no Mortgagor has been released, in whole or in part, from its obligations in connection therewith;
(xxxi) Each Mortgage Loan has been originated by the Seller in compliance in all material respects with the Seller's internal underwriting policies as in effect on the date of origination of such Mortgage Loan;
(xxxii) Other than provisions relating to "promotional Finance Charges" and "promotional Advances," as each such term is used in the related Loan Agreements, or any similar terms used in any of the related Loan Agreements, there are no provisions in any of the related Loan Agreements that would interfere with the allocation provisions of the second sentence of Section 2.4;
(xxxiii) No "Promotional Advances," as such term is used in the related Loan Agreements or any other similar type of advance that would be entitled to an allocation of payment contrary to the second sentence of Section 548 2.4 will be extended under any Mortgage Loan after the date on which the Rapid Amortization Period commences;
(xxxiv) None of the United States Bankruptcy CodeLoan Agreements that constitute or evidence the Mortgage Loans has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Purchaser;
(xxxv) and not for or on account of “antecedent debt”(as such term used in Section 547 None of the United States Bankruptcy Code) owed Mortgage Loans are "high cost home loans" under the Georgia Fair Lending Act, as amended, and no Mortgage Loans that are secured by the Seller mortgaged property in Georgia and were originated between Ocotber 1, 2002 and March 7, 2003 are subject to the Purchaser.Georgia Fair Lending Act;
(qxxxvi) In selecting None of the Eligible Receivables to be sold hereunderMortgage Loans are "high cost home loans" under the New York Predatory Lending Law, codified as N.Y. Banking Law ss.6-I, N.Y. Gen. Bus. Law ss.771-a, and N.Y. Real Prop. Acts Law ss.1302;
(xxxvii) As of the Cut-Off Date, the Seller has not used any selection criteria that are materially adverse to minimum CLTV of a Mortgage Loan in Loan Group I is 2.00%, the Purchaser or its assignees.highest CLTV of a Mortgage Loan in Loan Group I is 100.00% and the weighted average CLTV for the Mortgage Loans in Loan Group I is approximately 77.46
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Asset Securitization Inc 2003-He2 Trust)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized and organized, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business and is in good standing as a foreign limited liability company in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to be so qualify qualified would not be likely to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this the Agreement and the other documents Transaction Documents to be delivered by which it hereunderis a party, including the Seller's sale of Receivables hereunder and the Seller's its use of the proceeds of Purchases, purchases and reinvestments: (i) are within the Seller's its organizational powers, ; (ii) have been duly authorized by all necessary company organizational action, ; (iii) do not contravene or result in a default under or conflict with: (1A) its certificate of formation or any other organizational document of the Seller's organizational documents, (2B) any law, rule or regulation applicable to the Sellerit, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on indenture, loan agreement, mortgage, deed of trust or affecting the Seller other material agreement or its property instrument to which it is a party or by which it is bound, or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller it or any of its property, ; and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for properties. The Agreement and the transfer of the Seller's interest in the Sold Receivables pursuant other Transaction Documents to this Agreement). This Agreement has which it is a party have been duly executed and delivered by the Seller.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required to be obtained, taken, given or made by the Seller for the its due execution, delivery and performance by the Seller of this the Agreement or any other document Transaction Document to which it is a party party, other than the Uniform Commercial Code filings referred to be delivered by it in Exhibit II to the Agreement, all of which shall have been filed on or before the date of the first purchase hereunder.
(d) This Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws from time to time in effect affecting creditor's the enforcement of creditors' rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or, to Seller's best knowledge, threatened action or proceeding affecting Seller or any of its properties before any Governmental Authority or arbitrator.
(f) No proceeds of any Purchase purchase or reinvestment will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, used to acquire any equity security of buying or carrying any “margin stock” within the meaning of Regulation U a class that is registered pursuant to Section 12 of the Board Securities Exchange Act of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof1934.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivableof, and has good and marketable title to, the Pool Receivables, the Lock-Box Accounts (and related lock-boxes) and Related Security, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as Claim. Upon each purchase or reinvestment, the result of any action taken by Issuer shall acquire a valid and enforceable perfected undivided percentage ownership or on behalf security interest, to the extent of the Purchaser). When Purchased Interest, in each Pool Receivable then existing or thereafter arising and in the Purchaser makes a Purchase it shall acquire valid Related Security, Collections and perfected first priority ownership of each Sold Receivable, Related Security and the Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim arising Claim. The Agreement creates a valid and continuing security interest (as defined in the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed applicable UCC) in favor of the Purchaser Issuer in accordance with the Pool Assets and the Lock-Box Accounts (and related lock-boxes), which security interest is prior to all other Adverse Claims, and is enforceable as such against creditors of and purchasers from the Seller. The Pool Assets constitute "accounts", "general intangibles" or "tangible chattel paper" within the meaning of the applicable UCC. Each Lock-Box Account constitutes a "deposit account: within the meaning of the applicable UCC. The Seller has caused or will have caused, within ten (10) days, the filing of all appropriate UCC financing statements in the proper filing offices in the appropriate jurisdictions under applicable laws in order to perfect the security interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes) granted to the Issuer hereunder. Other than the security interest granted to the Issuer pursuant to this Agreement Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or in connection with otherwise conveyed any Adverse Claim arising solely as of the result Pool Assets or the Lock-Box Accounts (and related lock-boxes). Seller has not authorized the filing of and is not aware of any action taken by UCC financing statements against Seller that include a description of collateral covering the Pool Assets, other than any UCC financing statement relating to the security interest granted to the Issuer hereunder or on behalf that has been terminated. Seller is not aware of any judgment, ERISA or tax lien filings against the Seller. With respect to any Pool Receivable that constitutes "tangible chattel paper", the Servicer is in possession of the Purchaseroriginal copies of the tangible chattel paper that constitutes or evidences such Pool Receivables, and the Seller has filed or has caused to be filed within ten (10) days after the date hereof the financing statements described in this section above, each of which will contain a statement that "A purchase of or a grant of a security interest in any property described in this financing statement will violate the rights of the Issuer." The Pool Receivables to the extent they are evidenced by "tangible chattel paper" do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller or the Issuer.
(h) All Each Information Package (if prepared by the Seller or one of its Affiliates, or to the extent that information and each reportcontained therein is supplied by the Seller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by or on behalf of the Seller to the Purchaser Administrator in connection with this the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Administrator at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances)furnished.
(i) The Seller's principal place of business and business, chief executive office and state of formation (as such terms are used in the Seller UCC) and the office where the Seller it keeps its records or has access to such records concerning the Sold Receivables are located at the addresses address referred to in Section 5.01(b). The Seller's chief executive office Sections l(b) and principal place 2(b) of business has not changed within Exhibit IV to the past 12 monthsAgreement.
(j) The Seller is not known by names and does not use any tradename addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to the Agreement (or doingat such other Lock-businessBox Banks and/or with such other Lock-Box Accounts as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Transhave been notified to the Administrator in accordance with the Agreement) and all Lock-Continental Leaf Tobacco Corporation Ltd, TransBox Accounts are subject to Lock-Continental Leaf Tobacco Corporation AG Box Agreements. With respect to all Lock-Box Accounts (TCLTC AGand related lock-boxes), W.A. ▇▇▇▇▇ Company the Seller has delivered to the Administrator, on behalf of the Issuer, a fully executed Lock-Box Agreement pursuant to which the applicable Lock-Box Bank has agreed, following the occurrence and Transcontinuation of a Termination Event, to comply with all instructions given by the Administrator with respect to all funds on deposit in such Lock-Continental Leaf Tobacco Corporation SABox Account (and all funds sent to the respective lock-box), without further consent by the Seller or the Servicer. None of the Lock-Box Accounts (and the related lock-boxes) are in the name of any Person other than the Seller or the Issuer. The Seller has not consented to any Lock-Box Bank's complying with instructions of any person other than the Administrator.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation order of any governmental authoritycourt, which default arbitrator or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyGovernmental Authority.
(l) The balance sheets of Neither the Seller and nor any of its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the Affiliates has any direct or indirect ownership or other financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change interest in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)Issuer.
(m) There is no pending orNo proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, to the best knowledge rule or regulation, including Regulations T, U or X of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Federal Reserve Board.
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar lawEach Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) All financing statements necessary No event has occurred and is continuing, or would result from a purchase in order to perfect respect of, or reinvestment in respect of, the Purchaser's ownership interest in Purchased Interest or from the Receivables have been prepared and filedapplication of the proceeds therefrom, that constitutes a Termination Event or an Unmatured Termination Event.
(p) The sales Seller has accounted for each sale of undivided percentage ownership interests in Receivables by the Seller to the Purchaser pursuant to this Agreementin its books and financial statements as sales, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaserconsistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the Credit and Collection Policies of the Originators with regard to each Receivable originated by the Originators.
(r) The Seller has complied in all material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it.
(s) The Seller's complete organizational name is set forth in the preamble to the Agreement, and it does not use and has not during the last six years used any other organizational name, trade name, doing-business name or fictitious name, except as set forth on Schedule II to the Agreement and except for names first used after the date of the Agreement and set forth in a notice delivered to the Administrator pursuant to Section 1(1)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not an "investment company," or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. In selecting the Eligible Receivables to be sold hereunderaddition, the Seller has is not used any selection criteria that are materially adverse to a "holding company," a "subsidiary company" of a "holding company" or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company" within the Purchaser or its assigneesmeaning of the Public Utility Holding Company Act of 1935, as amended.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized and organized, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business and is in good standing as a foreign limited liability company in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to be so qualify qualified would not be likely to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this the Agreement and the other documents Transaction Documents to be delivered by which it hereunderis a party, including the Seller's sale of Receivables hereunder and the Seller's its use of the proceeds of Purchases, purchases and reinvestments: (i) are within the Seller's its organizational powers, ; (ii) have been duly authorized by all necessary company organizational action, ; (iii) do not contravene or result in a default under or conflict with: (1A) its certificate of formation or any other organizational document of the Seller's organizational documents, (2B) any law, rule or regulation applicable to the Sellerit, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on indenture, loan agreement, mortgage, deed of trust or affecting the Seller other material agreement or its property instrument to which it is a party or by which it is bound, or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller it or any of its property, ; and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for properties. The Agreement and the transfer of the Seller's interest in the Sold Receivables pursuant other Transaction Documents to this Agreement). This Agreement has which it is a party have been duly executed and delivered by the Seller.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required to be obtained, taken, given or made by the Seller for the its due execution, delivery and performance by the Seller of this the Agreement or any other document Transaction Document to which it is a party party, other than the Uniform Commercial Code filings referred to be delivered by it in Exhibit II to the Agreement, all of which shall have been filed on or before the date of the first purchase hereunder.
(d) This Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws from time to time in effect affecting creditor's the enforcement of creditors' rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or, to Seller's best knowledge, threatened action or proceeding affecting Seller or any of its properties before any Governmental Authority or arbitrator.
(f) No proceeds of any Purchase purchase or reinvestment will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, used to acquire any equity security of buying or carrying any “margin stock” within the meaning of Regulation U a class that is registered pursuant to Section 12 of the Board Securities Exchange Act of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof1934.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivableof, and has good and marketable title to, the Pool Receivables, the Lock-Box Accounts (and related lock-boxes) and Related Security, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as Claim. Upon each purchase or reinvestment, the result of any action taken by Administrator shall acquire a valid and enforceable perfected undivided percentage ownership or on behalf security interest, to the extent of the Purchaser). When Purchased Interest, in each Pool Receivable then existing or thereafter arising and in the Purchaser makes a Purchase it shall acquire valid Related Security, Collections and perfected first priority ownership of each Sold Receivable, Related Security and the Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim arising Claim. The Agreement creates a valid and continuing security interest (as defined in the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed applicable UCC) in favor of the Purchaser Administrator in accordance with the Pool Assets and the Lock-Box Accounts (and related lock-boxes), which security interest is prior to all other Adverse Claims, and is enforceable as such against creditors of and purchasers from the Seller. The Pool Assets constitute "accounts", "general intangibles" or "tangible chattel paper" within the meaning of the applicable UCC. Each Lock-Box Account constitutes a "deposit account: within the meaning of the applicable UCC. The Seller has caused or will have caused, within ten (10) days, the filing of all appropriate UCC financing statements in the proper filing offices in the appropriate jurisdictions under applicable laws in order to perfect the security interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes) granted to the Issuer hereunder. Other than the security interest granted to the Issuer pursuant to this Agreement Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or in connection with otherwise conveyed any Adverse Claim arising solely as of the result Pool Assets or the Lock-Box Accounts (and related lock-boxes). Seller has not authorized the filing of and is not aware of any action taken by UCC financing statements against Seller that include a description of collateral covering the Pool Assets, other than any UCC financing statement relating to the security interest granted to the Administrator hereunder or on behalf that has been terminated. Seller is not aware of any judgment, ERISA or tax lien filings against the Seller. With respect to any Pool Receivable that constitutes "tangible chattel paper", the Servicer is in possession of the Purchaseroriginal copies of the tangible chattel paper that constitutes or evidences such Pool Receivables, and the Seller has filed or has caused to be filed within ten (10) days after the date hereof the financing statements described in this section above, each of which will contain a statement that "A purchase of or a grant of a security interest in any property described in this financing statement will violate the rights of the Administrator." The Pool Receivables to the extent they are evidenced by "tangible chattel paper" do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller or the Issuer.
(h) All Each Information Package (if prepared by the Seller or one of its Affiliates, or to the extent that information and each reportcontained therein is supplied by the Seller or one of its Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by or on behalf of the Seller to the Purchaser Administrator in connection with this the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Administrator at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances)furnished.
(i) The Seller's principal place of business and business, chief executive office and state of formation (as such terms are used in the Seller UCC) and the office where the Seller it keeps its records or has access to such records concerning the Sold Receivables are located at the addresses address referred to in Section 5.01(b). The Seller's chief executive office Sections l(b) and principal place 2(b) of business has not changed within Exhibit IV to the past 12 monthsAgreement.
(j) The Seller is not known by names and does not use any tradename addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to the Agreement (or doingat such other Lock-businessBox Banks and/or with such other Lock-Box Accounts as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Transhave been notified to the Administrator in accordance with the Agreement) and all Lock-Continental Leaf Tobacco Corporation Ltd, TransBox Accounts are subject to Lock-Continental Leaf Tobacco Corporation AG Box Agreements. With respect to all Lock-Box Accounts (TCLTC AGand related lock-boxes), W.A. ▇▇▇▇▇ Company the Seller has delivered to the Administrator, on behalf of the Purchasers, a fully executed Lock-Box Agreement pursuant to which the applicable Lock-Box Bank has agreed, following the occurrence and Transcontinuation of a Termination Event, to comply with all instructions given by the Administrator with respect to all funds on deposit in such Lock-Continental Leaf Tobacco Corporation SABox Account (and all funds sent to the respective lock-box), without further consent by the Seller or the Servicer. None of the Lock-Box Accounts (and the related lock-boxes) are in the name of any Person other than the Seller or the Administrator (on behalf of the Purchasers). The Seller has not consented to any Lock-Box Bank's complying with instructions of any person other than the Administrator.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation order of any governmental authoritycourt, which default arbitrator or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyGovernmental Authority.
(l) The balance sheets of Neither the Seller and nor any of its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the Affiliates has any direct or indirect ownership or other financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change interest in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)Issuer.
(m) There is no pending orNo proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, to the best knowledge rule or regulation, including Regulations T, U or X of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Federal Reserve Board.
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar lawEach Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) All financing statements necessary No event has occurred and is continuing, or would result from a purchase in order to perfect respect of, or reinvestment in respect of, the Purchaser's ownership interest in Purchased Interest or from the Receivables have been prepared and filedapplication of the proceeds therefrom, that constitutes a Termination Event or an Unmatured Termination Event.
(p) The sales Seller has accounted for each sale of undivided percentage ownership interests in Receivables by the Seller to the Purchaser pursuant to this Agreementin its books and financial statements as sales, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaserconsistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the Credit and Collection Policies of the Originators with regard to each Receivable originated by the Originators.
(r) The Seller has complied in all material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it.
(s) The Seller's complete organizational name is set forth in the preamble to the Agreement, and it does not use and has not during the last six years used any other organizational name, trade name, doing-business name or fictitious name, except as set forth on Schedule II to the Agreement and except for names first used after the date of the Agreement and set forth in a notice delivered to the Administrator pursuant to Section 1(1)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not an "investment company," or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. In selecting the Eligible Receivables to be sold hereunderaddition, the Seller has is not used any selection criteria that are materially adverse to a "holding company," a "subsidiary company" of a "holding company" or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company" within the Purchaser or its assigneesmeaning of the Public Utility Holding Company Act of 1935, as amended.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of will be determined adversely to the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of will if determined adversely to the Seller materially and adversely affect it or its consolidated Subsidiaries as business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement. MLMI 2006-SL2 Mortgage Loan Sale and Assignment Agreement MLML
(b) The representations and warranties of and for the fiscal year then ended, copies of which have been furnished each Originator with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is applicable Transfer Agreement were made only as of the date of such Transfer Agreement and brought forward to the Closing Date pursuant to the applicable Bring Down Letter. The representations and warranties of each Originator with respect to the Mortgage Loans contained in the applicable Bring Down Letter are being made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Originator under the applicable Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(viii) and 1.04(b)(ix).
) shall be the right to enforce the obligations of the applicable Originator under any applicable representation or warranty made by it; provided, however, that to the extent any of (a) Bayrock Mortgage Corporation ("Bayrock"), (b) First NLC Financial Services, LLC ("First NLC"), (c) Ownit Mortgage Solutions, Inc. ("Ownit"), (d) Lime Financial Services, Inc. ("Lime"), (e) Maribella Mortgage, LLC ("Maribella"), (f) FMF Capital LLC ("FMF"), (g) MILA, Inc. ("MILA"), (h) NetBank ("NetBank"), (i) NC Capital Corporation ("NC Capital"), (j) IXIS Real Estate Capital Inc. ("IXIS"), (k) Quicken Loans Inc. ("Quicken"), (l) Secured Funding Corporation ("Secured Funding") or (m) There is no pending orSierra Pacific Mortgage Company, Inc ("Sierra Pacific") fails to fulfill its contractual obligations under the best knowledge applicable Transfer Agreement then the Depositor shall have the right to enforce such obligations of Bayrock, First NLC, Ownit, Lime, Maribella, FMF, MILA, NetBank, NC Capital, IXIS, Quicken, Secured Funding, and Sierra Pacific, as applicable, against the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) . The sales of Receivables representations made by the Seller to the Purchaser pursuant to this Agreement, Sections 1.04(b)(viii) and all other transactions between the Seller and the Purchaser, have been and will 1.04(b)(ix) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 The Depositor acknowledges and agrees that the representations and warranties of the United States Bankruptcy CodeSeller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(viii) and 1.04(b)(ix)) are applicable only to facts, conditions or events that do not for constitute a breach of any representation or on account of “antecedent debt”(as such term used warranty made by a Originator in Section 547 of the United States Bankruptcy Code) owed by the Seller applicable Transfer Agreement, AAR or Bring Down Letter. Except with respect to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderBayrock, First NLC, Ownit, Lime, Maribella, FMF, MILA, NetBank, NC Capital, IXIS, Quicken, Secured Funding, and Sierra Pacific, the Seller has not used shall have no obligation or liability with respect to any selection criteria that are materially adverse breach of a representation or warranty made by it with respect to the Purchaser Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by a Originator in the applicable Transfer Agreement, AAR or Bring Down Letter, without regard to whether such Originator fulfills its assignees.contractual obligations in respect of such representation or warranty; provided, however, that if such Originator fulfills its obligations under the provisions of the applicable Transfer Agreement, AAR and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of August 8, 2006:
Appears in 1 contract
Representations and Warranties of the Seller. On The Seller hereby makes to and for the Closing Date, as well as on benefit of the Purchaser each Purchase Date, of the Seller represents following representations and warrants as followswarranties:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of Virginia[______________] and has the power to own its property and to conduct its business as it is presently owned and as such business is presently conducted;
(ii) The Seller is neither required to qualify nor to register as a foreign corporation in any state in order to conduct its business, and is duly qualified not required under federal or state law to do obtain any licenses or approvals with respect to such business except such as have been obtained prior to the Closing Date;
(iii) The Seller has the power and authority to make, execute, deliver and perform its obligations under this Agreement and all of the transactions contemplated under this Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement;
(iv) The Seller is not required to obtain the consent of any other party or any consent, license, approval or authorization from, or registration or declaration with, any governmental authority, bureau or agency in every jurisdiction where connection with the nature execution, delivery, performance, validity or enforceability of its business requires it to be so qualifiedthis Agreement, except where failure such as have been obtained or filed, as the case may be, prior to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.Closing Date;
(ba) The execution, delivery and performance of this Agreement by the Seller will not violate or conflict with any provision of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule existing law or regulation or any order or decree of any court applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property any provision of the [Certificate of Incorporation] [Articles of Incorporation] [Articles of Association] or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer By-laws of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization , or approval constitute a material breach of any mortgage, indenture, contract or other action by, and no notice agreement to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by which the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to or by which the Seller may be delivered by it hereunder.bound;
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits proceedings or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no investigations pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries threatened, before any court, regulatory body, administrative agency, arbitrator or other tribunal or governmental agency instrumentality (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, (iii) seeking any determination or arbitrator which is reasonably likely to have a material adverse effectruling that, except as disclosed in the financial statements reasonable judgment of the Seller, would materially and adversely affect the transactions contemplated by this Agreement or filings referred the performance by the Seller of its obligations under this Agreement, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement, (v) seeking to in Section 4.01(l).affect adversely the Federal income tax attributes of the Trust, or (vi) seeking to impose any tax upon the Seller as a result of the sale of the Mortgage Loans pursuant to this Agreement; and
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(pvi) The sales Seller is not insolvent and will not be insolvent following the consummation on the Closing Date of Receivables the transactions contemplated by this Agreement and has not entered into such transactions, including the transfer by the Seller to the Purchaser pursuant of the property specified in Section 1, in contemplation of insolvency or with a view to hindering its creditors. The representations and warranties set forth in this Agreement, and all other transactions between Section 3 shall survive the Seller sale of the Mortgage Loans to the Purchaser and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors transfer of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 Mortgage Loans by the Purchaser to the Trust and the delivery of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of Mortgage Files to the United States Bankruptcy Code) owed Trustee. Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof to the Purchaserother party.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Loan Purchase Agreement (Directors Asset Conduit Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generallyof creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(eb) Each Receivable sold hereunder is an Eligible Receivable.
The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (fi) No proceeds a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any Purchase will be used, directly representation or indirectly warranty made by the Seller, for related Transferor in the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Sellerapplicable Transfer Agreement. The Seller shall have no remaining property interest in obligation or liability with respect to any Sold Receivable, Related Security breach of a representation or Collections. Immediately prior warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of each Sold Receivable hereundera representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller is shall, in exchange for such substitute mortgage loan, provide the legal Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date or any Transfer Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf warrants upon delivery of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller Mortgage Loans to the Purchaser in connection with this Agreement is or will be accurate in all material respects Depositor hereunder, as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).each, that:
(i) The principal place of business and chief executive office information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Seller Mortgage Loans, and the office where information with respect to each Mortgage Loan on the Seller keeps its records or has access to such records concerning the Sold Receivables are located Mortgage Loan Schedule is true and correct in all material respects at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.date or dates respecting which such information is given;
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kii) There are no actionsdefaults (other than delinquency in payment) in complying with the terms of any Mortgage, suits and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other proceedings improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters relating of public record as of the date of recording of such Mortgage acceptable to environmental liabilitymortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Mortgage Loan, and (3) pending or threatened against or affecting the Sellersuch other matters to which like properties are commonly subject which do not, or any of its properties, that (i) if adversely determined (individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, may then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the financial condition value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to each Mortgage Loan have been complied with;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xiii) The information set forth in the Prepayment Charge Schedule included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure) under applicable state law;
(xiv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 or any comparable state law;
(xv) No proceeds from any Mortgage Loan were used to finance single-premium credit insurance policies;
(xvi) The Servicers for each Mortgage Loan will accurately and fully report its borrower credit files to all three credit repositories in a timely manner;
(xvii) No Mortgage Loan imposes a Prepayment Charge for a term in excess of five years; and
(xviii) Seller has no reason to believe that any borrower will default under the related Mortgage Loan, or that foreclosure proceedings will be commenced with respect to any Mortgage Loan, within the six months immediately following the Closing Date. It is understood and agreed that the representations and warranties set forth herein and the obligations of the Seller or on set forth in this Section survive the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or Closing Date and any transaction contemplated herebyTransfer Date. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties (iiexcluding a breach of clause (xiii) under this Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan, and that does not also constitute a breach of a representation or warranty of the related Transferor in the applicable Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or Transfer Price (as set forth in the related Transfer Supplement) or (c) within the two year period following the Closing Date or any Transfer Date, as applicable, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan. For purposes of this Section, the representation and warranty in clause (xviii) above shall be deemed to have been breached as to any Mortgage Loan only if all of the following are true: (1) such Mortgage Loan had a Combined Loan-to-Value Ratio as of the Cut-off Date in excess of 80%; (2) the insurance related borrower is in default under such Mortgage Loan and liquidation of any Eligible Receivables under such Mortgage Loan is completed within six months after the PolicyClosing Date; (3) a Realized Loss is incurred with respect to such Mortgage Loan and (4) within six months after the Closing Date and prior to such liquidation, Realized Losses had been incurred with respect to the Mortgage Loans in the aggregate in an amount sufficient to reduce the aggregate Certificate Principal Amount of the Subordinate Certificates to zero.
(lc) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.Notwithst
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(ev) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There there are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished each Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is applicable Transfer Agreement were made only as of the date of this such Transfer Agreement).
. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (mi) There is a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of LBH under the Mortgage Loan Sale Agreement, the only right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of LBH in Section 1.04(b) of the Mortgage Loan Sale Agreement are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. LBH shall have no pending or, obligation or liability with respect to any breach of a representation or warranty made by it with respect to the best knowledge Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, LBH shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable purchase price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that it has conveyed to the Depositor all right, title and interest in and to each Mortgage Loan that was conveyed to the Seller by LBH pursuant to the Mortgage Loan Sale Agreement, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest placed on such Mortgage Loan by the Seller, threatened action and has full right and authority, subject to no interest or proceeding affecting the Seller participation of, or agreement with, any of its Subsidiaries before any courtother party, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared sell and filed.
(p) The sales of Receivables by the Seller to the Purchaser assign each Mortgage Loan pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On As an inducement to the Closing Date, as well as on each Purchase DateBuyer to enter into this Agreement, the Seller hereby represents and warrants to the Buyer as follows:
(a) The Seller is a corporation duly organized and validly existing under the laws of the State of Virginia, and This Agreement is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualifiedauthorized, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(eb) Each Receivable sold The Seller has full power and authority to enter into this Agreement and perform its obligations hereunder is an Eligible Receivableand to consummate the transactions contemplated hereby.
(fc) No proceeds The execution and delivery of this Agreement by the Seller and the performance by the Seller of its obligations hereunder do not conflict with or result in a breach of any Purchase will be used, directly term or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U provision of the Board of Governors charter documents of the Federal Reserve System Seller or any other agreement of the United States Seller or to which the property of America, as the same Seller is from time to time in effect, and all official rulings and interpretations thereunder or thereofbound.
(gd) Sales of Sold Receivables by On the date hereof and on the Closing Date the Seller pursuant to this Agreement will constitute a valid sale, transfer, owns beneficially and assignment of record the Sold Receivables Shares and the Seller has good and marketable title to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold ReceivableShares, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result security interest, pledge, mortgage, lien, call, option, charge, encumbrance, adverse claim, preferential arrangement or restriction of any action taken by kind, including, without limitation, any restriction on the use, voting, transfer, receipt of income or on behalf other exercise of any attributes of ownership (collectively, an "Encumbrance") except as legended in the stock certificate representing the Shares.
(e) Upon consummation of the Purchaser). When transactions contemplated by this Agreement on the Purchaser makes a Closing Date and upon payment in full and receipt of the Purchase it shall acquire valid and perfected first priority ownership of each Sold ReceivablePrice, Related Security and the Collections with respect thereto Buyer will own the Shares free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (Encumbrances except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or legended in the aggregate), may have a material adverse effect on stock certificate representing the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyShares.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On The Seller hereby represents, warrants and covenants with and to the Issuer, the Indenture Trustee, the Servicer, the Securities Insurer and the Securityholders as of the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the State of Virginia, Nevada and has all licenses necessary to carry on its business as now being conducted and is duly licensed, qualified and in good standing in each Mortgaged Property State if the laws of such state require licensing or qualification in order to do conduct business of the type conducted by the Seller and perform its obligations as Seller hereunder; the Seller has the power and authority to execute and deliver this Agreement and to perform in every jurisdiction where accordance herewith; the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) transactions contemplated hereby have been duly and validly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer action of the Seller's interest in ; this Agreement evidences the Sold Receivables pursuant to this Agreement). This Agreement valid, binding and enforceable obligation of the Seller; and all requisite action has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made taken by the Seller for the due execution, delivery and performance by the Seller of to make this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legalvalid, valid binding and binding obligation of the Seller enforceable against upon the Seller in accordance with its terms, subject to applicable the effect of bankruptcy, insolvency, reorganization, moratorium or other and other, similar laws relating to or affecting creditor's creditors' rights generally.generally or the application of equitable principles in any proceeding, whether at law or in equity;
(eb) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be usedtaken, directly given or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of Americaobtained, as the same is case may be, by or from time to time in effectany federal, and all official rulings and interpretations thereunder state or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security other governmental authority or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim agency (other than any Adverse Claim arising solely such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty) that are necessary in connection with the purchase and sale of the Securities and the execution and delivery by the Seller of this Agreement and the other related documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and such other documents on the part of the Seller and the performance by the Seller of its obligations as Seller under this Agreement and such other documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement will not result in (i) the breach of any action taken by terms or on behalf provisions of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership Articles of each Sold Receivable, Related Security and the Collections with respect thereto free and clear Incorporation or Bylaws of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement (ii) 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 similar in effect covering to which the Seller, or its property is subject, or (iii) the violation of any Sold Receivablelaw, rule, regulation, order, judgment or decree to which the Seller or its respective property is subject;
(d) Neither this Agreement nor the Prospectus nor any interest thereinstatement, report or other document prepared by the Related Security Seller and furnished or the Collections with respect thereto is on file in any recording office except such as may to be filed in favor of the Purchaser in accordance with furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any Adverse Claim arising solely as the result untrue statement of any action taken by material fact or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or omits to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all state a material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information fact necessary to make the information statements contained herein or therein not misleading under the circumstances).misleading;
(ie) The principal place of business and chief executive office There is no action, suit, proceeding or investigation pending or, to the best of the Seller and the office where Seller's knowledge, threatened against the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to which, either in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually one instance or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or result in any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property financial condition, properties or financial or other condition assets of the Seller or in any material impairment of the right or ability of the Seller to
(it being understood f) 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, which default might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(g) As of the Closing Date, the Issuer will have good and marketable title to each Initial Home Loan and such other items comprising the corpus of the Trust free and clear of any lien, mortgage, pledge, charge, security interest or other encumbrance;
(h) As of any Subsequent Transfer Date, the Issuer will have good and marketable title to each Subsequent Home Loan transferred on such date and such other items comprising the corpus of the Trust free and clear of any lien, mortgage, pledge, charge, security interest or other encumbrance; and
(i) The transfer, assignment and conveyance of the Home Loans, the Debt Instruments and the Mortgages by the Seller pursuant to this Agreement or any Subsequent Transfer Agreement are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction.
(j) The Seller shall provide each Rating Agency and the Securities Insurer with notice and a change in copy of any amendment to the debt ratings Articles of Incorporation of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of promptly after the date of this Agreement)filing thereof.
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Investment Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Option One Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of (or a date specified in) the Transfer Agreement and certain of such representations and warranties have been brought forward to the Closing Date pursuant to the terms of the Bring Down Letter and the Transfer Agreement. The representations and warranties of the Transferor with respect to the Option One Mortgage Loans contained in the applicable Bring Down Letter or Transfer Agreement are being made as of the Closing Date. To the extent that any fact, condition or event with respect to an Option One Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge sole right or remedy of the Seller, threatened action or proceeding affecting the Seller or any Depositor with respect to a breach of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have such representation and warranty (other than a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof) shall be the right to enforce the obligations of the Transferor under such applicable representation or warranty made by the Transferor. The representations and warranties of the Seller with respect to the Purchaser Option One Mortgage Loans pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between the Seller and the Purchaser, have been and will 1.04(b)(viii) hereof shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 The Depositor acknowledges and agrees that the representations and warranties of the United States Bankruptcy CodeSeller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof) are applicable only to facts, conditions or events that do not for also constitute a breach of any representation or on account warranty made by the Transferor in the Transfer Agreement or Bring Down Letter. With respect to a breach by the Transferor of “antecedent debt”(as such term used any representation or warranty made by the Transferor in Section 547 the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the United States Bankruptcy CodeTransfer Agreement and Bring Down Letter by substituting for the affected Option One Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Transferor shall, in exchange for such substitute mortgage loan, provide the Depositor (a) owed by with the Seller applicable Purchase Price for the affected Option One Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Option One Mortgage Loan. Subject to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderforegoing, the Seller has not used any selection criteria that are materially adverse represents and warrants upon delivery of the Option One Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of March 1, 2007 (unless otherwise specified):
(i) The information set forth with respect to the Option One Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Option One Mortgage Loans, and the information with respect to each Option One Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or its assigneesdates respecting which such information is given;
(ii) As of the Closing Date, no Option One Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Option One Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants as followsto, and agrees with, the Buyer:
(ai) The Seller is a corporation duly organized has all requisite power and validly existing under the laws authority to execute, deliver, and perform this Agreement. All necessary proceedings of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company actiontaken to authorize the execution, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its propertydelivery, and (iv) do not result in or require the creation performance of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed authorized, executed, and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid valid, and binding obligation of the Seller Seller, and is enforceable against the as to such Seller in accordance with its terms. Except as otherwise set forth in this Agreement, subject to applicable bankruptcyno consent, insolvencyauthorization, reorganizationapproval, moratorium order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder governmental authority or any court or other tribunal or any other third party is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables required by the Seller pursuant to for the execution, delivery, or performance of this Agreement will constitute a valid salethereby. No consent, transferapproval, authorization or order of, or qualification with, any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Seller or over its properties or assets and assignment no consent of any third party is required for the execution and delivery of this Agreement and the consummation by the Seller of the Sold Receivables to the Purchasertransactions herein and therein contemplated, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed required under the Securities Act or under state or other securities or blue sky laws, all of which requirements have been, or in favor accordance therewith will be, satisfied in all material respects. No consent of any party to any material contract, agreement, instrument, lease, license, arrangement, or understanding to which the Seller is a party, or to which its or any of its businesses, properties, or assets are subject, is required for the execution, delivery, or performance of this Agreement; and the execution, delivery, and performance of this Agreement will not violate, result in a breach of, conflict with, or (with or without the giving of notice or the passage of time or both) entitle any party to terminate or call a default under, entitle any party to receive rights or privileges that such party was not entitled to receive immediately before this Agreement was executed under, or create any obligation on the part of the Purchaser in accordance with Seller to which it was not subject immediately before this Agreement was executed under, any term of any such material contract, agreement, instrument, lease, license, arrangement, or understanding, or violate or result in connection a breach of any term of the certificate of incorporation or by-laws or analogous governing document of the Seller (if applicable) or (if the provisions of this Agreement are satisfied) violate, result in a breach of, or conflict with any Adverse Claim arising solely as the result law, rule, regulation, order, judgment, decree, injunction, or writ of any action taken by court, government or on behalf of governmental agency or body, domestic or foreign, having jurisdiction over the PurchaserSeller or over its properties or assets.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jii) The Seller is not known by an individual and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAhas reached the age majority in his state of residence.
(kb) There are no actionsis not any pending or, suits to the best of the Seller's knowledge, threatened, action, suit, claim or other proceedings (including matters relating to environmental liability) pending or threatened proceeding against or affecting the Seller, or any of its properties, assets or rights, before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Seller or over its properties, or otherwise that (i) if adversely determined (individually or is reasonably likely to result in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the respective business, operationsprospects, property financial condition or financial results of operations of such Seller or might materially and adversely affect its properties, assets or rights taken as a whole, (ii) might prevent consummation of the transactions contemplated by this Agreement, or (iii) alleging violation of any Federal or state securities laws.
(c) When delivered by the Seller against payment therefor in accordance with the terms of this Agreement, the Shares delivered thereby will be duly and validly issued and fully paid and nonassessable, and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest of any kind; and no preemptive or similar right, co-sale right, registration right, right of first refusal or other condition similar right of stockholders exists with respect to any of the Seller (it being understood Shares to be delivered thereby hereunder or the issuance and sale thereof other than those that have been expressly waived prior to the date hereof and those that will automatically expire upon the execution hereof. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale or transfer of the Shares, except as may be required under the Securities Act, the rules and regulations promulgated thereunder or under state or other securities or blue sky laws.
(i) a change in The Seller is the debt ratings sole record and beneficial owner of the Shares, free and clear of any security interest, pledge, mortgage, lien (including, without limitation, environmental and tax liens), charge, encumbrance, adverse claim, preferential arrangement or restriction of any kind, including, without limitation, any restriction on the use, voting, transfer (except as otherwise provided herein), receipt of income or other exercise of any attributes of ownership. The Shares to be delivered by the Seller hereunder are not subject to any options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to interests therein. There are no voting trusts, member agreements, proxies, or other agreements or understandings in effect with respect to the voting or transfer of any of such Shares. Other than the Shares, the Seller owns beneficially or of record, no shares of capital stock or other securities of the Company, and does notnot own beneficially or of record, in and any securities exercisable for, or convertible into or exchangeable for, securities of itself, constitute a material adverse change and the Company.
(ii) this representation is made only The Seller acquired the Shares owned beneficially and of record thereby from the Company or an affiliate thereof in private transactions not involving a public offering and, on the dates of such acquisitions, the Seller paid the full purchase price therefor. The Shares are "restricted securities" as of defined in Rule 144(a) under the date of this Agreement)Securities Act.
(miii) There is no pending or, to Neither the best knowledge Seller nor any affiliate thereof knows of any material adverse information regarding the current or prospective operations of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator Company which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assigneesbeen publicly disclosed.
Appears in 1 contract
Sources: Securities Purchase Agreement (Autovative Products Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter are being made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement, Bring Down Letter or the Term Sheet and (ii) a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge sole right or remedy of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller to of such representation and warranty (other than a breach by the Purchaser Seller of the representations and warranties made pursuant to this Agreement, Sections 1.04(b)(vi) and all other transactions between 1.04(b)(vii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vi) and the Purchaser, have been and will 1.04(b)(vii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 The Depositor acknowledges and agrees that the representations and warranties of the United States Bankruptcy CodeSeller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) are applicable only to facts, conditions or events that do not for constitute a breach of any representation or on account warranty made by the Transferor in the Transfer Agreement, Bring Down Letter or Term Sheet. The Seller shall have no obligation or liability with respect to any breach of “antecedent debt”(as a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such term used breach also constitutes a breach of a representation or warranty made by the Transferor in Section 547 the Transfer Agreement, Bring Down Letter or Term Sheet, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the United States Bankruptcy Code) owed Transfer Agreement, the Bring Down Letter and the Term Sheet by substituting for the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderaffected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller has not used any selection criteria that are materially adverse shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the Purchaser foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of April 27, 2006:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or its assigneesdates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its termsterms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(b) The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date or any Transfer Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a "master" or "blanket" hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender's Title Insurance Policy or attorney's opinion of title and abstract of title delivered to the originator of such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney's opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller's knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to each Mortgage Loan have been complied with;
(xii) Each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xiii) The information set forth in the Prepayment Charge Schedule included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganizationmoratorium, moratorium or receivership and other similar laws affecting creditor's rights generallygenerally or the collectibility thereof may be limited due to acceleration in connection with foreclosure) under applicable state law;
(xiv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 or any comparable state law;
(xv) No proceeds from any Mortgage Loan were used to finance single-premium credit insurance policies;
(xvi) The Servicers for each Mortgage Loan will accurately and fully report its borrower credit files to all three credit repositories in a timely manner; and
(xvii) No Mortgage Loan imposes a Prepayment Charge for a term in excess of five years. It is understood and agreed that the representations and warranties set forth herein and the obligations of the Seller set forth in this Section survive the Closing Date and any Transfer Date. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties (excluding a breach of clause (xiii) under this Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan, and that does not also constitute a breach of a representation or warranty of the related Transferor in the applicable Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or Transfer Price (as set forth in the related Transfer Supplement) or (c) within the two year period following the Closing Date or any Transfer Date, as applicable, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(ec) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds Notwithstanding the second paragraph of any Purchase will be usedSection 1.04(b), directly or indirectly by in connection with the Seller's representations and warranties made in clause (xiii) of Section 1.04(b), for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U 90 days of the Board earlier of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables discovery by the Seller pursuant to this Agreement will constitute or receipt of notice from the applicable Servicer or the NIMS Insurer of a valid sale, transfer, breach of any representation and assignment warranty of the Sold Receivables to Seller made in clause (xiii) of Section 1.04(b) above, which breach materially and adversely affects the Purchaser, enforceable against creditors of, and purchasers from, interests of the Seller. The Seller shall have no remaining property interest Class X Certificateholders in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunderPrepayment Charge, the Seller is the legal and beneficial owner of each such Sold Receivableshall, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
if (i) The principal place of business such representation and chief executive office of the Seller warranty is breached and the office where the Seller keeps its records or a Principal Prepayment has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables occurred or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) if a change in law subsequent to the debt ratings Closing Date, as applicable, limits the enforceability of the Seller does notPrepayment Charge (other than in the circumstances set forth in clause (xiii) of Section 1.04(b)), pay, at the time of such Principal Prepayment or change in and of itselflaw, constitute a material adverse change and (ii) this representation is made only as the amount of the date of this Agreement).
(m) There is no pending orscheduled Prepayment Charge, to for the best knowledge benefit of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors holders of the Seller. Each Class X Certificates, by depositing such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of amount into the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.Certificate Ac
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Sec Corp Pass THR Cert Ser 2002 Bc3)
Representations and Warranties of the Seller. On In order to induce the Closing DatePurchasers and the Administrative Agent to enter into the Agreement and, as well as on in the case of each Purchase DatePurchaser, the to make Purchases and Reinvestments hereunder, Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business and is in good standing as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this the Agreement and the other documents Transaction Documents to be delivered by which it hereunderis a party, including the Seller's sale of Receivables hereunder and the Seller's its use of the proceeds of Purchases, purchases and reinvestments: (i) are within the Seller's its corporate powers, ; (ii) have been duly authorized by all necessary company corporate action, ; (iii) do not contravene or result in a default under or conflict with: (1A) the Seller's organizational documentsits charter or by-laws, (2B) any law, rule or regulation applicable to the Sellerit, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on indenture, loan agreement, mortgage, deed of trust or affecting the Seller other agreement or its property instrument to which it is a party or by which it is bound, or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller it or any of its property, ; and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for properties. The Agreement and the transfer of the Seller's interest in the Sold Receivables pursuant other Transaction Documents to this Agreement). This Agreement has which it is a party have been duly executed and delivered by the Seller.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required to be obtained, taken, given or made by the Seller for the its due execution, delivery and performance by of the Seller of this Agreement or any other document Transaction Document to which it is a party party, other than the Uniform Commercial Code filings referred to be delivered by it in Schedule V to the Agreement, all of which shall have been filed on or before the date of the first purchase hereunder.
(d) This Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws from time to time in effect affecting creditor's the enforcement of creditors’ rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or, to Seller’s best knowledge, threatened action or proceeding affecting Seller or any of its properties before any Governmental Authority or arbitrator.
(f) No proceeds of any Purchase purchase or reinvestment will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, used to acquire any equity security of buying or carrying any “margin stock” within the meaning of Regulation U a class that is registered pursuant to Section 12 of the Board Securities Exchange Act of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof1934.
(g) Sales of Sold Receivables Each Information Package (if prepared by the Seller pursuant to this Agreement will constitute a valid saleor one of its Affiliates, transfer, and assignment of the Sold Receivables or to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, extent that information contained therein is supplied by the Seller is the legal and beneficial owner of each such Sold Receivableor an Affiliate), free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each reportinformation, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by or on behalf of the Seller to the Purchaser Administrative Agent in connection with this the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (furnished, and does not and will not contain any material misstatement of fact or omit to state a material fact or any information fact necessary to make the information statements contained therein not misleading under the circumstances)misleading.
(i1) The principal place For purposes of business and chief executive office of any applicable UCC, the Seller is located (as such term is used in the applicable UCC) in the State of Delaware and (2) the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located is at the addresses address referred to in Section 5.01(bSections 1(b) and 2(b) of Exhibit G to the Purchase and Sale Agreement.
(i) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to this Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the Administrative Agent in accordance with this Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements (except as otherwise agreed to in writing by the Administrative Agent). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use in violation of any tradename order of any court, arbitrator or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAGovernmental Authority.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting Neither the Seller, or Seller nor any of its properties, that (i) if adversely determined (individually Affiliates has any direct or indirect ownership or other financial interest in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyPurchaser.
(l) The balance sheets No proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, rule or regulation, including Regulations T, U or X of the Seller and its consolidated Subsidiaries Federal Reserve Board.
(m) Each Pool Receivable included as at December 31, 2011, and an Eligible Receivable in the related statements of income and retained earnings calculation of the Seller Net Receivables Pool Balance is an Eligible Receivable.
(n) No event has occurred and its consolidated Subsidiaries as of is continuing that constitutes a Termination Event or an Unmatured Termination Event and for no event would result from a Purchase in respect of, or reinvestment in respect of, the fiscal year then ended, copies of which have been furnished to Purchased Interest or from the Purchaser, fairly present the financial condition application of the proceeds therefrom that constitutes a Termination Event or an Unmatured Termination Event.
(o) The Seller has accounted for each sale of undivided percentage ownership interests in Receivables in its books and its consolidated Subsidiaries financial statements as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such datea sale, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31principles.
(p) The Seller and the applicable Originator has complied in all material respects with the Credit and Collection Policy of each Originator with regard to each Receivable originated by such Originator.
(q) The Seller has complied in all material respects with all of the terms, 2011 covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it and all laws, rules, regulations and orders that are applicable to it.
(r) The Seller’s complete corporate name is set forth in the preamble to the Agreement, and it does not use and has not during the last five years used any other corporate name, trade name, doing-business name or fictitious name, except as set forth on Schedule III to the Purchase and Sale Agreement and except for names first used after the date of the Agreement and set forth in a notice delivered to the Administrative Agent pursuant to Section 1(k)(iv) of Exhibit IV to this Agreement.
(s) The Seller is not an “investment company,” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, other than as publicly disclosed by amended. In addition, the Seller in SEC filings on Form 8Kis not a “holding company,” a “subsidiary company” of a “holding company” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company” within the meaning of the Public Utility Holding Company Act of 1935, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreementas amended.
(t) Since its most recent fiscal year end, there has been no material adverse change in the business, operations, property financial condition, properties or financial or other condition assets of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to would have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Material Adverse Effect on Seller.
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Amphenol Corp /De/)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to the Purchaser as follows:
(a) The Seller is a corporation duly organized has full legal capacity to execute, deliver and validly existing under the laws of the State of Virginiaperform this Agreement, and is duly qualified this Agreement does not violate any contractual restriction contained in any agreement which binds or affects or purports to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely bind or affect the Purchaser's rights hereunder.Seller;
(b) The Seller has good and marketable title to the Shares and the Shares are owned by the Seller, validly issued, fully paid and non-assessable, and after the consummation of the transactions contemplated hereby, the Shares will be owned by the Purchaser, free of any encumbrances, liens, claims, equities or liabilities of every nature;
(c) The Seller is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other person in connection with the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.;
(d) This Agreement constitutes Seller is an accredited investor as such term is defined under Regulation D promulgated pursuant to the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.Securities Act (“Regulation D”);
(e) Each Receivable sold hereunder Seller is an Eligible Receivable.acquiring the TRTB Shares for the Seller’s own account, for investment only and not with a view to, or for sale in connection with, a distribution thereof or any part thereof, within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder, or any applicable state Blue Sky laws;
(f) No proceeds of Seller is not a party or subject to or bound by any Purchase will be usedcontract, directly undertaking, agreement or indirectly by arrangement with any person to sell, transfer or pledge the Seller, for the purpose, whether immediate, incidental TRTB Shares or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time part thereof to time in effectany person, and all official rulings and interpretations thereunder has no present intention to enter into such a contract, undertaking, agreement or thereof.arrangement;
(g) Sales of Sold Receivables by the Purchaser has advised Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment that none of the Sold Receivables to TRTB Shares have been registered under the Purchaser, enforceable against creditors of, and purchasers from, Securities Act or under the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear laws of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.state;
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as As a result of its date or (except as otherwise disclosed to the Purchaser at such time) as lack of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading registration under the circumstances).Securities Act and any applicable state Blue Sky laws, the TRTB Shares may not be resold or otherwise transferred or disposed without registration pursuant to or an exemption therefrom available under the Securities Act and such applicable state Blue Sky laws;
(i) The principal place of business Each and chief executive office every certificate representing any of the Seller and TRTB Shares shall bear the office where restrictive legend substantially in the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.following form:
(j) The Seller has evaluated the merits and risks of acquiring the TRTB Shares and has such knowledge and experience in financial and business matters that Seller is not known by capable of evaluating the merits and does not use any tradename or doing-business-as namerisks of such acquisition, except for Dimon International AGis aware of and has considered the financial risks and financial hazards of acquiring the TRTB Shares and is able to bear the economic risk of acquiring the TRTB Shares, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.including the possibility of a complete loss with respect thereto;
(k) There are no actionsSeller has had access to such information regarding the business and finances of the Purchaser and has been provided the opportunity to discuss with the Purchaser’s management the business, suits affairs and financial condition of the Purchaser and such other matters with respect to the Purchaser as would concern a reasonable person considering the transactions contemplated by this Agreement;
(l) It has never been represented, guaranteed or other proceedings (including matters relating warranted to environmental liability) pending or threatened against or affecting Seller by the SellerPurchaser, or any of its propertiesofficers, that directors, agents, representatives or employees, or any other person, expressly or by implication, that:
(i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition any gain will be realized by Seller from Seller’s acquisition of the Seller or on the collectability of a material portion of the Sold Receivables or TRTB Shares;
(ii) involve this Agreement there will be any approximate or exact length of time that Seller will be required to remain as a holder of the TRTB Shares, except as provided by federal and state securities laws and regulations; or
(iii) the past performance or experience on the part of the Purchaser or any transaction contemplated hereby. The Seller is not in default of its officers, directors or other affiliates, its predecessors or of any contractual obligation or other person, will in violation of any order, rule or regulation of way indicate any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the future results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).Purchaser; and
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except Except as disclosed set forth in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used made any selection criteria that are materially adverse representation, warranty, covenant or agreement with respect to the Purchaser or its assigneesmatters contained herein.
Appears in 1 contract
Sources: Stock Purchase Agreement
Representations and Warranties of the Seller. On The Seller represents, warrants and covenants to the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as followsBuyer that:
(a) The Seller is a corporation duly organized and validly existing under the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and acquired the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is Shares either from a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stockregistered charity” within the meaning of Regulation U of the Board of Governors of Tax Act or from persons who acquired the Federal Reserve System of Shares directly from the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.Issuer;
(gb) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment acquired the Shares as principal as an “accredited investor” within the meaning of NI 45-106 on the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, basis that the Seller is a person in respect of which all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors, are persons that are individuals who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000;
(c) it is, and will be immediately prior to Closing on the Closing Date, the sole legal and beneficial owner of each the Shares;
(d) at the time of Closing on the Closing Date, the Seller shall have the full right and authority to transfer the Shares to the Buyer. The Seller shall transfer all of the Seller’s right, title and interest in and to the Shares to the Buyer and upon such Sold Receivabletransfer, free the Buyer will have full and clear sole ownership thereof;
(e) the Seller shall not take any steps to create any Encumbrance on the Shares. Except as specified in the following paragraph, the Shares are not subject to any Encumbrance;
(f) the Seller has no actual knowledge of any Adverse Claim (Encumbrances on the Shares, other than any Adverse Claim arising solely as the result transfer restriction provided for pursuant to Section 2.5 of any action taken by or on behalf National Instrument 45-102 of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid CSA and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken restrictions on transfer or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor disposition of the Purchaser Shares in accordance with the United States or to a U.S. Person (as defined in Regulation S under the U.S. Securities Act of 1933, as amended (the (Securities Act”)) resulting from the Issuer’s offer and sale of the Shares without registration under the Securities Act;
(g) the Seller has all the necessary corporate and/or other power and authority as is required by all laws applicable to it to enable it to enter into, execute and deliver this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf and to observe and perform all of the Purchaser.terms, conditions and provisions of this Agreement which are required to be observed and performed by it; and
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doinga “non-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting resident” of Canada within the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition meaning of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyTax Act.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Purchase & Sale Agreement (Fcmi Financial Corp Et Al)
Representations and Warranties of the Seller. On The Seller hereby makes to and for the Closing Date, as well as on benefit of the Purchaser each Purchase Date, of the Seller represents following representations and warrants as followswarranties:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of Virginia[______________] and has the power to own its property and to conduct its business as it is presently owned and as such business is presently conducted;
(b) The Seller is neither required to qualify nor to register as a foreign corporation in any state in order to conduct its business, and is duly qualified not required under federal or state law to do obtain any licenses or approvals with respect to such business except such as have been obtained prior to the Closing Date;
(c) The Seller has the power and authority to make, execute, deliver and perform its obligations under this Agreement and all of the transactions contemplated under this Agreement, and has taken all necessary corporate action to authorize the execution, delivery and
(d) performance of this Agreement;
(e) The Seller is not required to obtain the consent of any other party or any consent, license, approval or authorization from, or registration or declaration with, any governmental authority, bureau or agency in every jurisdiction where connection with the nature execution, delivery, performance, validity or enforceability of its business requires it to be so qualifiedthis Agreement, except where failure such as have been obtained or filed, as the case may be, prior to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.Closing Date;
(bf) The execution, delivery and performance of this Agreement by the Seller will not violate or conflict with any provision of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule existing law or regulation applicable to the Seller, (3) or any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction order or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.court
(g) Sales of Sold Receivables by applicable to the Seller pursuant to this Agreement will or any provision of the [Certificate of Incorporation] [Articles of Incorporation] [Articles of Association] or By-laws of the Seller, or constitute a valid salematerial breach of any mortgage, transferindenture, and assignment of the Sold Receivables contract or other agreement to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, which the Seller is a party or by which the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as Seller may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.bound;
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits proceedings or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no investigations pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries threatened, before any court, regulatory body, administrative agency, arbitrator or other tribunal or governmental agency instrumentality (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, (iii) seeking any determination or arbitrator which is reasonably likely to have a material adverse effectruling that, except as disclosed in the financial statements reasonable judgment of the Seller, would materially and adversely affect the transactions contemplated by this Agreement or filings referred the performance by the Seller of its obligations under this Agreement, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement, (v) seeking to in Section 4.01(l).affect adversely the Federal income tax attributes of the Trust, or (vi) seeking to impose any tax upon the Seller as a result of the sale of the Mortgage Loans pursuant to this Agreement; and
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(pi) The sales Seller is not insolvent and will not be insolvent following the consummation on the Closing Date of Receivables the transactions contemplated by this Agreement and has not entered into such transactions, including the transfer by the Seller to the Purchaser pursuant of the property specified in Section 1, in contemplation of insolvency or with a view to hindering its creditors. The representations and warranties set forth in this Agreement, and all other transactions between Section 3 shall survive the Seller sale of the Mortgage Loans to the Purchaser and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors transfer of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 Mortgage Loans by the Purchaser to the Trust and the delivery of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of Mortgage Files to the United States Bankruptcy Code) owed Trustee. Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof to the Purchaserother party.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Chase Manhattan Acceptance Corp /De/)
Representations and Warranties of the Seller. On The Seller hereby represents, warrants and covenants to the Closing Date, as well as on each Purchase DateIssuer, the Seller represents Depositor, the Indenture Trustee, the Note Insurer and warrants the Owners that as followsof the Startup Day:
(a) The Seller is a corporation limited partnership duly organized formed and validly existing under the laws of the State of Virginia, governing its creation and existence and is duly qualified to do business in every good standing in each jurisdiction where in which the nature of its business, or the properties owned or leased by it make such qualification necessary. The Seller has all requisite authority to own and operate its properties, to carry out its business requires it as presently conducted and as proposed to be so qualified, except where failure conducted and to so qualify would not be likely enter into and discharge its obligations under this Indenture and the other Operative Documents to materially adversely affect the Purchaser's rights hereunderwhich it is a party.
(b) The execution, execution and delivery of this Indenture and performance the other Operative Documents to which it is a party by the Seller and its performance and compliance with the terms of this Agreement Indenture and the other documents Operative Documents to be delivered by which it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) is a party have been duly authorized by all necessary company action, (iii) do corporate action on the part of the Seller and will not contravene (1) violate the Seller's organizational documentsAgreement of Limited Partnership or constitute a default (or an event which, (2with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any lawmaterial contract, agreement or other instrument to which the Seller
is a party or by which the Seller is bound or violate any statute or any order, rule or regulation applicable to the Sellerof any court, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on governmental agency or affecting body or other tribunal having jurisdiction over the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerproperties.
(c) No authorization or approval or This Indenture and the other action byOperative Documents to which the Seller is a party, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionother parties hereto and thereto, delivery and performance by the Seller of this Agreement or any other document to which it is each constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legalvalid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its termsthe terms hereof and thereof, subject to except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's creditors' rights generallygenerally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) 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 governmental agency, which default would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or the consequences of which would materially and adversely affect its performance hereunder and under the other Operative Documents to which the Seller is a party.
(e) Each Receivable sold No litigation is pending with respect to which the Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which litigation might have consequences that would prohibit its entering into this Indenture or any other Operative Documents to which it is a party or that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder and under the other Operative Documents to which the Seller is an Eligible Receivablea party.
(f) No proceeds certificate of any Purchase will be usedan officer, directly statement furnished in writing or indirectly report delivered pursuant to the terms hereof by the SellerSeller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, for the purpose, whether immediate, incidental statement or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofreport not misleading.
(g) Sales of Sold Receivables by The statements contained in the Registration Statement which describe the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, matters or activities for which the Seller is responsible in accordance with the legal Operative Documents or which are attributable to the Seller therein are true and beneficial owner correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to the Seller required to be stated therein or necessary to make the statements contained therein with respect to the Seller, in light of the circumstances under which they were made, not misleading. The Registration Statement does not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. There is no fact known to the Seller that materially adversely affects or in the future may (so far as the Seller can now reasonably foresee) materially adversely affect the Seller or the Home Equity Loans or the ownership interests therein represented by the Notes that has not been set forth in the Registration Statement.
(h) Upon the receipt of each Home Equity Loan (including the related Mortgage Note) and other items of the Trust Estate by the Indenture Trustee under this Indenture, the Issuer will have good title to such Sold Receivable, Home Equity Loan (including the related Mortgage Note) and such other items of the Trust Estate free and clear of any Adverse Claim lien, charge, mortgage, encumbrance or rights of others, except as set forth in Section 2.04 (b) (ix) (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or liens which will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstancessimultaneously released).
(i) The principal place Neither the Seller nor any affiliate thereof will report on any financial statement any part of business the Servicing Fee as an adjustment to the sales price of the Home Equity Loans.
(j) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and chief executive office licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the Operative 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 Indenture and the other Operative Documents on the part of the Seller and the office where performance by the Seller keeps of its records or has access obligations under this Indenture and such of the other Operative Documents to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 monthswhich it is a party.
(jk) The origination practices used by the Seller with respect to the Home Equity Loans have been, in all material respects, legal, proper, prudent and customary in the mortgage lending business.
(l) The transactions contemplated by this Indenture are in the ordinary course of business of the Seller.
(m) Neither the Indenture Trustee nor the Seller has any obligation to register the Issuer as an investment company under the Investment Company Act of 1940, as amended.
(n) The Seller is not known insolvent, nor will it be made insolvent by and does not use the transfer of the Home Equity Loans, nor is the Seller aware of any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SApending insolvency.
(ko) There are no actionsThe Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Home Equity Loans.
(p) The Seller did not sell any interest in any Home Equity Loan with any intent to hinder, suits delay or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or defraud any of its properties, that creditors.
(iq) if adversely determined (individually or in the aggregate), may have a No material adverse effect on change affecting any security for the financial condition Notes has occurred prior to delivery of and payment for the Seller or on the collectability of a material portion of the Sold Receivables or Notes.
(iir) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of under any contractual agreement involving financial obligations or on any outstanding obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) would materially adversely impact the financial condition or operations of the Seller or (ii) legal documents associated with the insurance of any Eligible Receivables under the Policytransaction contemplated by this Indenture.
(ls) The balance sheets To the best knowledge of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this AgreementSeller, there has been no material adverse change in any information submitted by the businessSeller in writing to the Note Insurer with respect to the transactions contemplated by this Indenture (unless such information was subsequently supplemented in writing). It is understood and agreed that the representations and warranties set forth in this Section 2.03 shall survive delivery of the respective Home Equity Loans to the Indenture Trustee. Upon discovery by any of the Issuer, operationsthe Depositor, property the Servicer, the Custodian, any Sub-Servicer, any Owner, the Seller, the Note Insurer or financial the Indenture Trustee (each, for purposes of this paragraph, a "party") of a breach of any of the representations and warranties set forth in this Section 2.03 which materially and adversely affects the interests of the Owners or the interests of the Note Insurer, the party discovering such breach shall give prompt written notice to the other condition parties. The Seller hereby covenants and agrees that within 60 days of its discovery or its receipt of notice of breach, it shall cure such breach in all material respects or, with respect to a breach of clause (h) above, the Seller may (or may cause an affiliate of the Seller (it being understood that to) on or prior to the second Monthly Remittance Date next succeeding such discovery or receipt of notice (i) substitute in lieu of any Home Equity Loan not in compliance with clause (h) a change Qualified Replacement Mortgage and, if the outstanding principal amount of such Qualified Replacement Mortgage as of the applicable Replacement Cut-Off Date is less than the Loan Balance of such Home Equity Loan as of such Replacement Cut-Off Date, deliver an amount (a "Substitution Amount") equal to such difference together with the aggregate amount of (A) all Delinquency Advances and Servicing Advances theretofore made with respect to such Home Equity Loan and (B) all Delinquency Advances which the Servicer has theretofore failed to remit with respect to such Home Equity Loan to the Servicer for deposit in the debt ratings of the Seller does not, in Principal and of itself, constitute a material adverse change and Interest Account or (ii) this representation is made only as purchase such Home Equity Loan from the Issuer at the Loan Purchase Price, which purchase price shall be delivered to the Servicer for deposit in the Principal and Interest Account. The Seller shall also deliver an Officer's Certificate to the Indenture Trustee and the Note Insurer concurrently with the delivery of the date of this Agreement).
(m) There is no pending orQualified Replacement Mortgage pursuant to Sections 2.03, to 2.04 and 2.06 stating that such Home Equity Loan meets the best knowledge requirements of the Seller, threatened action or proceeding affecting the Seller or any definition of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely a Qualified Replacement Mortgage and that all other conditions to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables substitution thereof have been prepared and filedsatisfied.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Indenture (Imc Securities Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of this Agreement).
(m) There is no pending or, the Transfer Agreement and brought forward to the best knowledge Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Seller, threatened action or proceeding affecting Transferor with respect to the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed Mortgage Loans contained in the financial statements Bring Down Letter are being made as of the Closing Date. To the extent that any fact, condition or filings referred event with respect to in Section 4.01(l).
a Mortgage Loan constitutes a breach of both (ni) No transaction contemplated hereby requires compliance with any bulk sales act a representation or similar law.
warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (oii) All financing statements necessary in order to perfect a representation or warranty of the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to Sponsor under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Sponsor of such representation and all warranty (other transactions between than a breach by the Seller Sponsor of the representations and warranties made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it; provided, however, that to the extent the Transferor fails to fulfill its contractual obligations under the Transfer Agreement then the Depositor shall have the right to enforce such obligations of the Transferor against the Sponsor. The representations made by the Sponsor pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii) shall be direct obligations of the Sponsor. The Depositor acknowledges and agrees that the representations and warranties of the Sponsor in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of Bring Down Letter by substituting for the Seller. Each such sale has been made for “reasonably equivalent value” (as such term affected Mortgage Loan a mortgage loan which is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereundera Replacement Mortgage Loan, the Seller has not used any selection criteria that are materially adverse shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the Purchaser foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of October 1, 2006:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or its assigneesdates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of Virginia, jurisdiction named at the beginning hereof and is duly qualified to do business business, and is in good standing, in every jurisdiction where in which the nature of its business requires it to be so qualified, except where to the extent that the failure to so qualify be qualified to do business or in good standing in any jurisdiction would not be likely to not, when taken together with all similar failures, materially adversely affect the Purchaser's financial condition or operations of the Seller, the collectibility of any Receivable or the rights of the Agent or any Owner hereunder. The Seller has no Subsidiaries.
(b) The execution, delivery and performance by the Seller of this Agreement, the Transfer Agreement and the all other instruments and documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and thereunder, and the Seller's use of the proceeds of Purchasestransactions contemplated hereby and thereby, (i) are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1i) the Seller's organizational documentscharter or by-laws, (2ii) any law, rule or regulation applicable to the Seller, other than any such laws, rules or regulations the contravention of which on an aggregate basis would not materially adversely affect the financial condition or operations of the Seller, the collectibility of any Receivable or the rights of the Agent or any Owner hereunder (3iii) any contractual restriction (except as otherwise provided contained in Section 5.01(j)(i)(B)) any indenture, loan or credit agreement, lease, mortgage, security agreement, bond, note, or other agreement or instrument binding on or affecting the Seller or its property or (4iv) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for the transfer of the Seller's interest other than as contemplated herein and in the Sold Parallel Purchase Agreement with respect to the Pool Receivables pursuant to this Agreementand Related Security); and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement has been duly executed and delivered by on behalf of the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement, the Transfer Agreement or any other document to which it is a party or instrument to be delivered by it hereunderhereunder or thereunder, except for the filing of the financing statements referred to in Article III, all of which, at the time required in Article III, shall have been duly made and shall be in full force and effect.
(d) This Agreement constitutes and the Transfer Agreement constitute the legal, valid and binding obligation obligations of the Seller enforceable against the Seller in accordance with its their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible ReceivableThe consolidated balance sheets of the Parent and its consolidated Subsidiaries as at December 31, 1994, and the related consolidated statements of cash flows and consolidated statements of changes in financial position of the Parent and its consolidated Subsidiaries for the fiscal year then ended, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of the Parent and its consolidated Subsidiaries as at such date and the consolidated results of the operations of the Parent and its consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied, and since December 31, 1994, there has been no material adverse change in any such condition or operations.
(f) There are no actions, suits or proceedings pending, or to the knowledge of the Seller threatened, against or affecting the Parent, the Seller or any other Subsidiary of the Parent, or the property of the Parent, the Seller or of any other Subsidiary of the Parent, in any court, or before any arbitrator of any kind, or before or by any governmental body, which may reasonably be expected to materially adversely affect the financial condition or operations of the Seller or the Parent or the Parent and its consolidated Subsidiaries taken as a whole, or materially adversely affect the ability of the Seller or the Parent to perform their respective obligations under this Agreement and the Transfer Agreement. None of the Parent, the Seller or any Subsidiary of the Parent, is in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of the Seller or the Parent or the Parent and its consolidated Subsidiaries taken as a whole.
(g) No proceeds of any Purchase will be used, directly or indirectly used by the Seller, for the purpose, whether immediate, incidental Seller to acquire any security in any transaction which is subject to Section 13 or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U 14 of the Board Securities Exchange Act of Governors of the Federal Reserve System of the United States of America1934, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofamended.
(gh) Sales of Sold Receivables Each Receivable, together with the Contract related thereto, is owned by the Seller pursuant to this Agreement will constitute free and clear of any Adverse Claim except as provided herein and upon each Purchase and reinvestment, the Owner making such Purchase or reinvestment shall acquire a valid sale, transfer, and assignment perfected first priority undivided percentage ownership interest to the extent of the Sold Receivables to Eligible Asset(s) purchased by such Owner in each Pool Receivable then existing or thereafter arising and in the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold ReceivableCollections with respect thereto, free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, provided hereunder; and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, Receivable or the Related Security or the Collections with respect thereto is shall at any time be on file in any recording office except such as may be filed in favor of the Purchaser Agent in accordance with this Agreement. The sum of all Eligible Assets and all "Eligible Assets" under and as defined in the Parallel Purchase Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchasershall at no time exceed 100%.
(hi) All No Investor Report (if prepared by the Seller, or, if not prepared by the Seller, to the extent that information and each reportcontained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser Agent or any Owner in connection with this Agreement is or will shall be accurate inaccurate in all any material respects respect as of its the date it is or shall be dated or (except as otherwise disclosed to the Purchaser Agent or such Owner, as the case may be, at such time) as of the date so furnished (and does not furnished, or contains or shall contain any material misstatement of fact or omits or shall omit to state a material fact or any information fact necessary to make the information statements contained therein not misleading under the circumstances)materially misleading.
(ij) The principal chief place of business and chief executive office of the Seller are located at the address of the Seller referred to in Section 11.02 hereof and the office locations of the offices where the Seller keeps its records all the Records are listed on Exhibit F (or has access at such other locations, notified to such records concerning the Sold Receivables are located at the addresses referred to Agent in accordance with Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG5.01(f), W.A. ▇▇▇▇▇ Company in jurisdictions where all action required by Section 6.05 has been taken and Trans-Continental Leaf Tobacco Corporation SAcompleted).
(k) There are no actions, suits or other proceedings (including matters relating The Purchase of Eligible Assets and the reinvestment of Collections pursuant to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that Section 2.05 will constitute (i) if adversely determined (individually or in a "current transaction" within the aggregate), may have a material adverse effect on the financial condition meaning of Section 3(a)(3) of the Seller or on the collectability Securities Act of a material portion of the Sold Receivables or 1933, as amended, and (ii) involve this Agreement a purchase or any transaction contemplated hereby. The Seller is not in default other acquisition of any contractual obligation notes, drafts, acceptances, open accounts receivable or in violation of any order, rule other obligations representing part or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition all of the Seller sales price of merchandise, insurance or (iiservices within the meaning of Section 3(c)(5) of the insurance Investment Company Act of any Eligible Receivables under the Policy1940, as amended.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as As of the date of this Agreement)hereof, except as described on Exhibit D, the Seller has no trade names, fictitious names, assumed names or "doing business as" names.
(m) There is no pending orThe Seller or the Parent, as applicable, shall have given reasonably equivalent value to each Dealer in consideration for the best knowledge of the Seller, threatened action or proceeding affecting transfer to the Seller or any the Parent, as applicable of its Subsidiaries before any courtthe Receivables and related Contracts from such Dealer or the Parent, governmental agency as applicable, and none of such transfers is or arbitrator which is reasonably likely to have a material adverse effectmay be voidable under Sections 544, except as disclosed in 545, 548, 549 or 724(a) of the financial statements or filings referred to in Section 4.01(l)Bankruptcy Code.
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order Each Receivable and related Contract that has been transferred to perfect the Purchaser's ownership interest in Seller by the Receivables have Parent has been prepared and filed.
(p) The sales of Receivables purchased by the Seller from the Parent pursuant to the Purchaser pursuant to this Transfer Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Snap on Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants as followsfollows as of the date hereof and as of the date of each Purchase hereunder:
(a) The Seller is a corporation limited liability company duly organized and formed, validly existing and in good standing under the laws of the State of Virginia, and Delaware. The Seller is duly qualified to do business business, and is in good standing, in every other jurisdiction where the nature of its business requires it to be so qualified, except where unless the failure to so qualify would not reasonably be likely expected to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunderTransaction Documents, including the Seller's sale of Receivables hereunder and the Seller's ’s use of the proceeds of Purchases, (i) are within the Seller's ’s limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) do not contravene (1) the Seller's organizational documents’s certificate of formation or limited liability company agreement, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables as created pursuant to this Agreement). This Agreement Each of the Transaction Documents has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Official Body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document the Transaction Documents to which it is a party or any other document to be delivered by it hereunderthereunder, except for the filing of UCC financing statements referred to in Section 3.01.
(d) This Agreement Each of the Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting creditor's the enforcement of creditors’ rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder is an Eligible ReceivableThe opening pro forma balance sheet of the Seller as of June 30, 2003, giving effect to the initial Incremental Purchase to be made under this Agreement, a copy of which has been furnished to the Administrative Agent and each Managing Agent, fairly presents the financial condition of the Seller as of such date, in accordance with GAAP. Since its formation no change, occurrence or development has occurred (including, without limitation, with respect to any commenced or threatened material litigation or proceeding) that has had or could reasonably be expected to have a Material Adverse Effect.
(f) There is no pending or (to the best knowledge of the Seller) threatened action or proceeding affecting the Seller before any Official Body. The Seller is not in default in any material respect of any order of any Official Body.
(g) No proceeds of any Purchase will be usedused for a purpose that violates or would be inconsistent with, directly Regulation T, U or indirectly X promulgated by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereoftime.
(gh) Sales of Sold Receivables Each Receivable treated as or represented to be a Pool Receivable is owned by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the PurchaserClaims created hereunder). When the Purchaser makes The Purchasers have acquired a Purchase it shall acquire valid and perfected first priority ownership of security interest in each Sold Receivable, Pool Receivable now existing or hereafter arising and in the Related Security and the Collections with respect thereto thereto, in each case free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no (other than Adverse Claims created hereunder). No effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file filed in any recording office listing the Seller as debtor, covering any asset of the Seller except such as may be filed in favor of the Purchaser Administrative Agent in accordance with this Agreement Agreement. No effective financing statement or other instrument similar in connection with effect, is filed in any Adverse Claim arising solely recording office listing the Originator as the result of debtor, covering any action taken by Receivable, Related Security or on behalf Collections except such as may be filed in favor of the PurchaserSeller and assigned to the Administrative Agent in accordance with this Agreement. Prior to giving effect to any transfer under the Originator Purchase Agreement, all Receivables were payable to the Originator as principal for its own account. The Originator has no obligation (whether pursuant to any contract, any requirement of Law or otherwise) to remit any Collections on the Receivables to any Pharmaceutical Plan or to any other Person, other than to the Sellers and the Purchasers as provided in the Originator Purchase Agreement and this Agreement.
(hi) All Each Servicer Report (if prepared by any Transaction Party or one of their respective Affiliates, or to the extent that information and each reportcontained therein is supplied by any Transaction Party or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time (whether before, on or after the date of this Agreement) by the Seller or on behalf of any Transaction Party to the Administrative Agent, any Managing Agent or any Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Administrative Agent, such Managing Agent or such Purchaser, as the case may be, at such time) as of the date so furnished (furnished, and does not no such Servicer Report, information, exhibit, financial statement, document, book, record or report contains or will contain any untrue statement of a material fact or omits or will omit any information to state a material fact necessary in order to make the information statements contained therein therein, in the light of the circumstances under which they were made, not misleading under the circumstances)misleading.
(ij) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jk) The names and addresses of all the Deposit Account Banks together with the account numbers of the Deposit Accounts at such Deposit Account Banks are as specified in Schedule IV hereto, as such Schedule IV may be updated from time to time pursuant to Section 5.01(g).
(l) Since the date of its formation, the Seller is has not known by and does not use used any company name, tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Transname other than the name in which it has executed this Agreement. The Seller’s Federal Employer Identification Number is 83-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA08665.
(km) There are no actionsThe Seller was formed on July 10, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of 2003 and the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or did not engage in any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made business activities prior to the date of this Agreement, there . The Seller has been no material adverse change in the business, operations, property or financial or other condition Subsidiaries. Medco directly owns 100% of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge membership interests of the Seller, threatened action or proceeding affecting the Seller or free and clear of any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Adverse Claims.
(n) No transaction contemplated hereby requires compliance with any bulk sales act The Seller is not, and is not controlled by, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or similar lawis exempt from all provisions of such Act.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filedThe Seller is Solvent.
(p) The sales With respect to each Receivable treated as or represented to be a Pool Receivable, the Seller (i) received such Receivable as a contribution to the capital of Receivables the Seller by the Originator or (ii) purchased such Receivable from the Originator in exchange for payment (made by the Seller to the Purchaser pursuant Originator in accordance with the provisions of the Originator Purchase Agreement) of cash, an addition to this Agreementthe principal amount of the Subordinated Note, or a combination thereof in an amount which constitutes fair consideration and all other transactions between reasonably equivalent value. No such sale or contribution was made for or on account of an antecedent debt owed by the Originator to the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each no such sale has been made for “reasonably equivalent value” (as such term or capital contribution is used in Section 548 or may be voidable or subject to avoidance under any section of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting Each Receivable included in the calculation of the Net Receivables Pool Balance on any date shall be an Eligible Receivables to be sold hereunder, Receivable as of such date.
(r) The Receivable Interest Percentage does not exceed the Seller Maximum Receivable Interest Percentage.
(s) No event has not used any selection criteria that are materially adverse to the Purchaser occurred and is continuing and no condition exists which constitutes a Termination Event or its assigneesIncipient Termination Event.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Medco Health Solutions Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as followsthat:
(a) The Seller is a corporation duly organized and validly existing under the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement Deed constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller him in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by ; the Seller pursuant has full power and authority to execute and deliver this Agreement will constitute a valid sale▇▇▇▇, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, perform his obligations ▇▇▇▇▇▇▇▇▇▇ ▇▇, and to consummate the transactions contemplated hereby to be consummated by him;
(ii) the Seller has not done or caused or suffered to be done nor has the Seller been a party to or privy to anything whereby the Seller is prevented from granting, assigning and selling the Land or whereby his rights to sell the same have been, can, may or shall be impaired in any manner;
(iii) neither the execution and delivery of this Deed by the Seller nor the performance of his obligations hereunder, (a) violates, conflicts with or results in a breach of any applicable Laws, (b) violates, conflicts with or results in a breach or termination of, or otherwise give any contracting party additional rights or compensation under, or the right to terminate or accelerate, or constitute (with notice or lapse of time, or both) a default under the terms of any contract to which the Seller is a party or which relates to the Land (c) results in the creation or imposition of any Encumbrances, Liens, litigation, claims, demands, dues, charges (including taxes, fees, cesses, duties, levies and impositions of any description) with respect to, or otherwise have an adverse effect upon, the Land, its ownership or use of it, or (d) vests in, or give rise to, any right of pre‐emption, or right to compensation, with respect to the Land in any Person;
(iv) no consent or approval (of whatever nature and howsoever described) is required in connection with the execution and delivery by the Seller of this Deed or the consummation of the transactions contemplated hereby;
(v) the Seller has obtained all consents, permits and approvals required to sell the Land to the Purchaser, to execute and deliver this Deed and to consummate the transactions contemplated hereby and to enable the Purchaser to use the Land for industrial and commercial use;
(vi) neither the ownership nor the use of the Land by the Seller or by the Purchaser pursuant hereto conflicts with the rights of any other Person or violates, or with or without the giving of notice or the passage of time, or both, will violate, conflict with or result in a default, right to accelerate or loss of rights under, any or provisions of any Lien or Encumbrance (of whatever nature and howsoever described), contract or Law to which the Seller are a party or by which the Seller or the Land is bound or affected;
(vii) the Seller has no Liabilities (of whatever nature and howsoever described) relating to the Land;
(viii) there are no actions, proceedings, litigation, governmental acquisition or orders pending, resolved, settled or threatened against the Seller with respect to the Land or the acquisition by the Purchaser thereof and there is no basis upon which any such action or proceeding could reasonably be brought or initiated or any order instituted;
(ix) the Seller has not withheld from the Purchaser any material fact relating to the Land (including its title and user) that is known to the Seller;
(x) the Seller has not performed or permitted any act or deed which can diminish, affect or eliminate the Seller’s right in and to the Land or the Purchaser’s acquisition of, title to or the use of the Land;
(xi) the Seller has not received any notice of any claim and no proceeding has been instituted raising any claim against the Seller, included but not limited to, alleging any damage to the environment Laws; or violation of any environmental
(xii) all representations and warranties of the Seller contained herein are true, correct and not mi leading, in any material respect;
(xiii) the Land and the Seller’s rights, titles, interests therein hereby sold, are free from all Encumbrances, mortgages, charges, gifts, ▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltddemands, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG)dues, W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actionslitigation, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the SellerLiabilities, losses, fines, deficiencies or any other claims of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated herebywhatsoever nature including but not limited to regulatory and environmental issues. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed defect in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales title of Receivables by the Seller to the Purchaser pursuant to this Agreement, Land or any part thereof and all other transactions between the Seller being the exclusive, absolute and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors joint owner of the Seller. Each such sale Land has been made for “reasonably equivalent value” (as such term is used in Section 548 of full and good title, right, power, lawful and absolute authority and legal competence to sell, transfer, assign and convey the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller Land to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, Purchaser and that the Seller has not used done or caused or suffered to be done nor has the Seller been a party to or privy to anything whereby the Seller is prevented from granting, assigning and selling the Land or whereby his right to sell the same has been, can, may or shall e impaired in any selection criteria that are materially adverse manner. If anything is found to the contrary and in consequence thereof, the Purchaser is put to any losses, damages and costs, the Seller undertake to indemnify and hold harmless the Purchaser from all losses, dama es and costs resulting from such defect in title; and
(xiv) if anything is found to the contrary to the above and in consequence thereof, the Purchaser is put to any losses, damages and costs, the Seller undertake to fully i demnify and hold harmless the Purchaser from all such losses, damages, costs or its assigneesany liability under any name whatsoever.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller hereby represents and warrants as followsto the Buyer on the date hereof and on the Closing Date that:
(a) The Seller it is a corporation duly organized and organized, validly existing and in good standing under the laws of the State jurisdiction of Virginiaits organization, and is duly qualified has full power and authority to do business in every jurisdiction where enter into this Agreement and consummate the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.transactions contemplated hereby;
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.it and constitutes its legal, valid and binding agreement, enforceable against it in accordance with its terms, except as enforceability hereof may be limited by bankruptcy, insolvency, moratorium, and other similar laws relating to creditors’ rights generally and by general equitable principles;
(c) No authorization or approval or other action byit is the lawful owner, beneficially and of record, of its portion of the Purchased Interest, and no notice upon consummation of the sale and delivery of such portion of the Purchased Interest hereunder, the relevant Class X Units shall be free and clear of all liens, claims, restrictions and other encumbrances, other than those arising under the Partnership Agreement;
(d) it has full legal right, power and authority to or filing with, any governmental authority or regulatory body is required sell and deliver the Purchased Interest to be obtained, taken, given or made by the Seller for Buyer pursuant to this Agreement;
(e) the due execution, delivery and performance by sale of its portion of the Seller of Purchased Interest to the Buyer pursuant to this Agreement is made in accordance with all applicable laws and regulations and does not breach or violate any other document contract or agreement to which it is a party to be delivered or by which it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation or its portion of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder Purchased Interest is an Eligible Receivable.bound;
(f) No proceeds of any Purchase will be used, directly it has not sold or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U transferred its portion of the Board of Governors Purchased Interest, any portion thereof or any interest therein to any other person, and no other person has any right or option to acquire its portion of the Federal Reserve System of the United States of AmericaPurchased Interest, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.any portion thereof or any interest therein; and
(g) Sales neither it nor any of Sold Receivables its affiliates, nor any of their respective officers, directors or employees has employed any broker or finder or incurred any liability for any brokerage fees, commissions, or finder’s fees in connection with the transactions contemplated by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of except for the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser brokers who are compensated in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf terms of the PurchaserBusiness Combination Transaction.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller it acknowledges that it is a sophisticated seller with respect to the Purchaser in connection with this Agreement is or will be accurate in all material respects purchase, sale and valuation of securities such as the Purchased Interest, the shares of its date or (except as otherwise disclosed to Common Stock and the Purchaser at such time) as New Parent Shares. Additionally, it acknowledges that it has adequate information concerning the Purchased Interest, the shares of Common Stock and the date so furnished (New Parent Shares, and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on Partnership and its affiliates, the collectability of a material portion Issuer and New Parent to make an informed decision regarding the sale of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) Purchased Interest and the financial condition acquisition of the Seller or (ii) shares of Common Stock and the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011New Parent Shares, and has independently and without reliance upon the related statements Partnership, and based upon such information as it has deemed appropriate, made its own analysis and decision to sell the Purchased Interest and acquire the shares of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date Common Stock and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)New Parent Shares.
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Each of the Seller and each Selling Subsidiary is a corporation duly organized and organized, validly existing and in good standing under the laws of the State jurisdiction of Virginia, its formation and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to so qualify would not be likely have a material adverse effect on the Seller or such Selling Subsidiary. The Seller owns all of the issued and outstanding shares eligible to materially adversely affect vote of the Purchaser's rights hereundercapital stock of each Selling Subsidiary.
(b) The execution, delivery and performance by the Seller of this Agreement Agreement, each Selling Subsidiary Letter and the all other instruments and documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder transactions contemplated hereby and thereby, and the Seller's use of the proceeds of Purchases, (i) and the execution, delivery and performance by each Selling Subsidiary of the Selling Subsidiary Letter to which it is a party and all other instruments and documents to be delivered by such entity hereunder and thereunder, and the transactions contemplated hereby and thereby, are within the Sellersuch entity's corporate or other powers, (ii) have been duly authorized by all necessary company corporate or other action, (iii) do not contravene (1i) the Sellersuch entity's organizational charter or by-laws or other constituent documents, as applicable, or (2ii) any law, rule law or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, such entity and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer such entity's material properties, other than as a result of the Seller's interest in the Sold Receivables pursuant to transactions contemplated by this Agreement). This Agreement has been duly executed and delivered by the Sellereach Selling Subsidiary Letter; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document Agreement, each Selling Subsidiary Letter to which it is a party or any other document or instrument to be delivered by it hereunder, or for the due execution, delivery and performance by each Selling Subsidiary of the Selling Subsidiary Letter to which it is a party or any other document or instrument to be delivered by it hereunder except for the filing of the UCC Financing Statements referred to in Article III or paragraph 4 of each Selling Subsidiary Letter, all of which, at the time required in Article III or paragraph 4 of each Selling Subsidiary Letter, as the case may be, shall have been duly made and shall be in full force and effect.
(d) This Agreement constitutes is, and the Certificate and each Selling Subsidiary Letter when delivered hereunder will be, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject and each Selling Subsidiary Letter when delivered hereunder by each Selling Subsidiary party thereto will be the legal, valid and binding obligation of such Selling Subsidiary enforceable against such Selling Subsidiary in accordance with its terms, in each case, except to the extent that the enforceability thereof is limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's creditors' rights generallygenerally and by equitable principles (regardless of whether enforcement is sought in equity or at law).
(ei) Each Receivable sold hereunder is The Consolidated balance sheet of the Seller and its Subsidiaries as at December 31, 1998, and the related Consolidated statement of income and cash flows of the Seller and its Subsidiaries for the fiscal year then ended, accompanied by an Eligible Receivableopinion of Ernst & Young, independent public accountants, copies of which have been furnished to the Agent, fairly present, the Consolidated financial condition of the Seller and its Subsidiaries as at such dates and the Consolidated results of the operations of the Seller and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and (ii) since December 31, 1998, there has been no material adverse change in any such condition or operations.
(f) There is no pending or overtly threatened action, suit, investigation, litigation or proceeding against or affecting the Seller or any of its Subsidiaries, or the property of the Seller or of any of its Subsidiaries, in any court, or before any arbitrator of any kind, or before or by any governmental body, which, taking into account its probability of success, may materially adversely affect the financial condition of the Seller or the Seller and its Consolidated Subsidiaries taken as a whole or materially adversely affect the ability of the Seller to perform its obligations under this Agreement or any Selling Subsidiary Letter or of any Selling Subsidiary to perform its obligations under the Selling Subsidiary Letter to which it is a party; neither the Seller nor any of its Subsidiaries is in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of the Seller or the Seller and its Subsidiaries taken as a whole.
(g) No proceeds of any Purchase or reinvestment will be used, directly or indirectly used by the Seller, for Seller to acquire any equity security (other than the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U Common Stock of the Board Seller to the extent permitted under the Credit Agreement) of Governors a class that is registered pursuant to Section 12 of the Federal Reserve System Securities Exchange Act of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof1934.
(gh) Sales of Sold Receivables Each Pool Receivable is (i) together with the Contract related thereto owned by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim except as provided for herein and (other than any Adverse Claim arising solely as ii) an Eligible Receivable; upon each Purchase or reinvestment, the result of any action taken by Owner making such Purchase or on behalf of the Purchaser). When the Purchaser makes reinvestment will acquire a Purchase it shall acquire valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Eligible Asset in each Sold Receivable, Pool Receivable then existing or thereafter arising and in the Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising except as the result of any action taken or not taken by the Seller, provided hereunder; and no effective financing statement (other than the financing statements filed pursuant to the Original Agreement) or other instrument similar in effect covering any Sold Receivable, Contract or any interest therein, Pool Receivable or the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser CNAI, as Agent, in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the PurchaserAgreement.
(hi) All Each Seller Report (if prepared by the Seller or any Selling Subsidiary, or to the extent that information and each reportcontained therein is supplied by the Seller or any Selling Subsidiary), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller or any Selling Subsidiary to the Purchaser Agent or any Owner in connection with this Agreement or any Selling Subsidiary Letter is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Agent or such Owner, as the case may be, at such time) as of the date so furnished (furnished, and does not omit no such document contains any information material misstatement of fact or omits to state a material fact or any fact necessary to make the information statements contained therein not misleading under the circumstances)materially misleading.
(ij) The principal place of business and chief executive office of the Seller is located at the address of the Seller set forth under its name on the signature pages hereof and the chief executive office of each Selling Subsidiary and the chief place of business and the offices where each of the Seller and each Selling Subsidiary keeps all its books, records and documents evidencing Pool Receivables or has access to such records concerning the Sold Receivables related Contracts are located at the addresses referred address specified in Schedule IV hereto as such Schedule IV may be amended from time to time (or at such other locations, notified to the Agent in accordance with Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG5.01(f), W.A. ▇▇▇▇▇ Company in jurisdictions where all action required by Section 6.05 has been taken and Trans-Continental Leaf Tobacco Corporation SAcompleted).
(k) There are no actionsThe names and addresses of all the Lock-Box Banks, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting together with the Seller, or any account numbers of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition Lock-Box Accounts of the Seller and each Selling Subsidiary at such Lock-Box Banks, are specified in Schedule I hereto as such Schedule I may be amended from time to time (or on at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not Agent in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policyaccordance with Section 5.03(d)).
(l) The balance sheets Neither the Seller nor any Affiliate of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the has any direct or indirect ownership or other financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change interest in the businessInvestor, operations, property the Agent or financial or other condition of the Seller any "Original Bank" (it being understood that (i) a change as such term is defined in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this AgreementParallel Purchase Commitment).
(m) There is no pending orEach purchase of an Eligible Asset hereunder, to and each reinvestment of Collections in Pool Receivables made hereunder, will constitute (i) a "current transaction" within the best knowledge meaning of Section 3(a)(3) of the SellerSecurities Act of 1933, threatened action as amended, and (ii) a purchase or proceeding affecting other acquisition of notes, drafts, acceptances, open accounts receivable or other obligations representing part or all of the Seller sales price of merchandise, insurance or any services within the meaning of its Subsidiaries before any courtSection 3(c)(5) of the Investment Company Act of 1940, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)amended.
(n) No transaction contemplated hereby requires compliance with With respect to each Pool Receivable originally owed to any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by Selling Subsidiary, the Seller has acquired such Pool Receivable pursuant to a Selling Subsidiary Letter and paid or will pay to such Selling Subsidiary in cash (by book entry or otherwise), no later than 30 days after the end of the calendar quarter during which such Pool Receivable was transferred to the Purchaser Seller pursuant to this Agreementsuch Selling Subsidiary Letter, and all other transactions an amount equal to at least the fair market value of such Pool Receivable which could reasonably be expected to result from arms-length negotiations between unaffiliated parties. Each such transfer was not made for or on account of an antecedent debt owed by such Selling Subsidiary to the Seller and no such transfer was made by the Purchaser, have been and will be made in good faith and without Selling Subsidiary (i) with the intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made its creditors, (ii) for “less than reasonably equivalent value” , (iii) while the Selling Subsidiary was, or which rendered the Selling Subsidiary, insolvent, (iv) as a result of which the Selling Subsidiary was left with unreasonably small capital, or (v) as a result of which the Selling Subsidiary incurred debts beyond its ability to pay such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaserdebts as they matured.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Trade Receivables Purchase and Sale Agreement (Polyone Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to the Issuer and the Indenture Trustee on behalf of the Securityholders that, as followsof the Closing Date or as of such date specifically provided herein:
(ai) The the Seller is a corporation duly organized and organized, validly existing and in good standing as a limited liability company under the laws of the State of VirginiaDelaware and is and will remain in compliance with the laws of each state in which any Mortgaged Property is located to the extent necessary to fulfill its obligations hereunder;
(ii) the Seller has the power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to execute, deliver and perform, and to enter into and consummate, all transactions contemplated by this Agreement. The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement and this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or other similar laws in relation to the rights of creditors generally;
(iii) the execution and delivery of this Agreement by the Seller and the performance of and compliance with the terms of this Agreement will not violate the Seller’s certificate of formation or limited liability company agreement or constitute a default under or result in a material breach or acceleration of, any material contract, agreement or other instrument to which the Seller is duly qualified a party or which may be applicable to do business the Seller or its assets;
(iv) the Seller is not in every violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction where over the nature of Seller or its business requires it to be so qualifiedassets, except where failure to so qualify which violation might have consequences that would not be likely to materially and adversely affect the Purchaser's rights condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.;
(bv) The the Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vi) the Seller has good, marketable and indefeasible title to the Mortgage Loans, free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans and upon the payment of the purchase price under the Mortgage Loan Purchase Agreement by the Depositor, the Depositor will have good and marketable title to the Mortgage Notes and Mortgage Loans, free and clear of all liens or encumbrances;
(vii) the Mortgage Loans are not being transferred by the Seller with any intent to hinder, delay or defraud any creditors of the Seller;
(viii) there are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of of, or compliance by the Seller with, this Agreement and or the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchasestransactions contemplated by this Agreement, (i) are within the Seller's powersexcept for such consents, (ii) approvals, authorizations or orders, if any, that have been duly authorized by all necessary company action, obtained; and
(iii) do not contravene (1x) the Seller's organizational documents, (2) any law, rule or regulation applicable to consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting and the Seller or its property or (4) any ordertransfer, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, assignment and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer conveyance of the Seller's interest in Mortgage Notes and the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables Mortgages by the Seller pursuant to this the Mortgage Loan Purchase Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables are not subject to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, bulk transfer or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policysimilar statutory provisions.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Sale and Servicing Agreement (New York Mortgage Trust 2005-2)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement)., the only right or remedy of the Depositor shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in the Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that:
(mi) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There is no pending orMortgage Loan underlying the security that was originated on or after October 1, 2002, which is secured by property located in the state of Georgia;
(iii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iv) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code and Treas. Reg.
Section 1. 860G-2; and
(v) As to the servicing of the Mortgage Loans, the representations and warranties contained in Sections 7.02(iii), (iv), (ix), (xvii), (xxiii) and (xxxiv) of the Transfer Agreement are incorporated herein by reference as of the Closing Date. It is understood and agreed that the representations and warranties set forth in Section 1.04(b) herein shall survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Depositor. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties that adversely and materially affects the value of the related Mortgage Loan, and, that does not also constitute a breach of a representation or warranty of the Transferor in the Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 of the Pooling Agreement and this Agreement, to the best knowledge extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for in the Pooling Agreement, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the SellerCode or on "contributions after the startup date" under Section 860(d)(1) of the Code, threatened action or proceeding affecting the Seller or (ii) any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed REMIC created in the financial statements or filings referred Pooling Agreement to in Section 4.01(l)fail to qualify as a REMIC at any time that any Certificate is outstanding.
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter (whether or not such fact, condition or event would also constitute a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge only rights or remedies of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller of such representation and warranty shall be first, the right to enforce the Purchaser obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor shall have the right to enforce such rights against the Seller under this Agreement with respect to such representation or warranty; provided, that in the event that the Depositor has received evidence of the issuance of a Transferor Affirmation Notice, the Depositor shall only be entitled to enforce any right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller under the Sale Agreement with respect to such representation or warranty. The representations made by the Seller pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between the Seller and the Purchaser, have been and will 1.04(b)(viii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 In furtherance of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderabove, the Seller has not used any selection criteria expressly acknowledges that are materially adverse prior to the Purchaser issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Depositor for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its assigneescontractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of November 3, 2006:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. On The Seller makes in its capacity as Seller and Servicer the Closing Date, following representations and warranties to the Purchaser as well of the date hereof and as on of each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller It is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State jurisdiction of Virginia, its incorporation and is duly qualified to do business in every good standing in each jurisdiction where the nature of its business requires it failure to be so qualified, except where failure to so qualify would not be likely to qualified could materially adversely affect the Purchaser's rights its ability to perform its obligations hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunderSale Documents, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchasesthe Purchase, (i) are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1i) the Seller's organizational documents, articles of incorporation or by-laws or (2ii) any law, rule law or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its propertySeller, and (iv) do not result in or require the creation of any lien, security interest or Adverse Claim (other charge or encumbrance than pursuant hereto) upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed properties; and delivered by the Sellerno transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement the Sale Documents, or any for the perfection of or the exercise by the Purchaser of its rights and remedies under the Sale Documents, except for the filing of the financing statements or other document documents referred to which it is a party to be delivered by it hereunderin Section 4.1.2 and except for compliance with Section 4.1.11.
(d) This Agreement Each Sale Document constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or threatened action or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect (i) its financial condition or operations or (ii) its ability to perform its obligations under the Sale Documents, or which could affect the legality, validity or enforceability of any Sale Document or of the interests of the Purchaser in the Purchased Assets.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of the Receivables, the Related Security and Collections, each such Sold ReceivablePurchased Receivable will be an Eligible Receivable on the related Purchase Date and the Receivables and Collections are free and clear of any Adverse Claim, except as created by this Agreement; upon consummation of a Purchase, the Purchaser will acquire a valid ownership interest in the Purchased Receivables and in the Related Security and the Collections with respect thereto, and the Receivables and Collections will be free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as the result of any action taken created by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the PurchaserAgreement.
(hg) All The information to be provided by the Seller to the Servicer for use in each Servicer Report prepared under Section 5.5 and all information and each report, exhibit, financial statement, document, book, record or report Sale Documents furnished or to be furnished in writing at any time by the Seller to the Purchaser Administrative Agent in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances)date.
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jh) The Seller is not known by treating the sale and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller assignment to the Purchaser pursuant to under this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors Agreement of the Seller. Each such Purchased Receivables, Related Security and Collections as a sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaserall purposes.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Sale Agreement (Chrysler Financial Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to the Purchaser as follows:
(a) 3.1 The Seller is a corporation duly organized has the full right, power and validly existing under authority to enter into this Agreement and to transfer, convey and sell to the laws Purchaser at the Closing the Shares to be sold by the Seller hereunder and, upon consummation of the State purchase contemplated hereby, the Purchaser will acquire from the Seller good, valid and marketable title to such Shares, free and clear of Virginiaall covenants, conditions, restrictions, voting trust arrangements, shareholder agreements, liens, pledges, charges, security interests, encumbrances, options and is adverse claims or rights whatsoever.
3.2 This Agreement has been duly qualified to do business authorized, executed and delivered on behalf of the Seller and constitutes the valid and binding obligation of the Seller, enforceable in every jurisdiction where the nature of accordance with its business requires it to be so qualifiedterms, except where failure as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium or other similar laws relating to so qualify would not be likely to materially adversely affect or affecting the Purchaser's rights hereunder.
(b) of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses. The execution, delivery and performance of this Agreement, the sale and delivery of the Shares to be sold by the Seller of this Agreement Seller, and compliance with the other documents to be delivered provisions hereof by it hereunder, including the Seller's sale , do not and will not, with or without the passage of Receivables hereunder and time or the Seller's use giving of notice or both, (a) assuming the accuracy of the proceeds representations and warranties of Purchasesthe Purchaser set forth in Section 4, (i) are within the Seller's powersviolate any provision of law, (ii) have been duly authorized by all necessary company actionstatute, (iii) do not contravene (1) the Seller's organizational documents, (2) any lawordinance, rule or regulation applicable to the Seller, (3) or any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any orderruling, writ, judgmentinjunction, awardorder, injunction judgment or decree binding on of any court, administrative agency or affecting the Seller other governmental body, or its property, and (ivb) do not result in any breach of any of the terms, conditions or require provisions of, or constitute a default (or give rise to any right of termination, cancellation or acceleration) under, or result in the creation of any lien, security interest or other interest, charge or encumbrance upon any of the properties or with respect assets of the Seller under, any note, indenture, mortgage or lease, or any other material contract or other instrument, document or agreement, to which the Seller is a party or by which it or any of its properties (except for property is bound or affected.
3.3 The Seller is not a party to, subject to or bound by any agreement or any judgment, order, writ, prohibition, injunction or decree of any court or other governmental body which would prevent the transfer execution or delivery of this Agreement by the Seller or the transfer, conveyance and sale of the Seller's interest in Shares to be sold by the Sold Receivables Seller to the Purchasers pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerterms hereof.
(c) No authorization 3.4 All consents, approvals or approval authorizations of, or other action byregistrations, and no notice to filings or filing declarations with, any governmental authority or regulatory body is any other person, if any, required to be obtained, taken, given or made by in connection with the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to the transactions contemplated hereby have been or at the Closing will have been obtained by the Seller and will be delivered by it hereunderin full force and effect.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against 3.5 No broker or finder has acted for the Seller in accordance connection with its termsthis Agreement or the transactions contemplated hereby, subject and no broker or finder is entitled to applicable bankruptcy, insolvency, reorganization, moratorium any brokerage or finder’s fee or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds commissions in respect of any Purchase will be usedsuch transactions based upon agreements, directly arrangements or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken understandings made by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMSA Treemont Acquisition Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of Virginia, Delaware and is duly qualified to do business and is in good standing as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to be so qualify qualified would not be likely to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this the Agreement and the other documents Transaction Documents to be delivered by which it hereunderis a party, including the Seller's sale of Receivables hereunder and the Seller's its use of the proceeds of Purchases, Purchases and reinvestments: (i) are within the Seller's its corporate powers, ; (ii) have been duly authorized by all necessary company corporate action, ; (iii) do not contravene or result in a default under or conflict with: (1A) the Seller's organizational documentsits charter or by-laws, (2B) any law, rule or regulation applicable to the Sellerit, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on indenture, loan agreement, mortgage, deed of trust or affecting the Seller other material agreement or its property instrument to which it is a party or by which it is bound, or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller it or any of its property, ; and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for properties. The Agreement and the transfer of the Seller's interest in the Sold Receivables pursuant other Transaction Documents to this Agreement). This Agreement has which it is a party have been duly executed and delivered by the Seller.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required to be obtained, taken, given or made by the Seller for the its due execution, delivery and performance by the Seller of this the Agreement or any other document Transaction Document to which it is a party party, other than the UCC filings referred to be delivered by it in Exhibit II to the Agreement, all of which shall have been filed on or before the date of the first Purchase hereunder.
(d) This Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws from time to time in effect affecting creditor's the enforcement of creditors’ rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or, to Seller’s best knowledge, threatened action or proceeding affecting Seller or any of its properties before any Governmental Authority or arbitrator.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.[RESERVED]
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivablethe Pool Receivables and Related Security, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as Claim. Upon each purchase or reinvestment, the result of any action taken by Purchasers shall acquire a valid and enforceable perfected undivided percentage ownership or on behalf security interest, to the extent of the Purchaser). When Purchased Interest, in each Pool Receivable then existing or thereafter arising and in the Purchaser makes a Purchase it shall acquire valid Related Security, Collections and perfected first priority ownership of each Sold Receivable, Related Security and the Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim arising as Claim. The Agreement creates a security interest in favor of the result Purchasers in the Pool Assets, and the Purchasers has a first priority perfected security interest in the Pool Assets, free and clear of any action taken or not taken by the Seller, and no Adverse Claims. No effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto Pool Asset is on file in any recording office office, except such as may be those filed in favor of BPI pursuant to the Purchaser Sale Agreement and in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf favor of the PurchaserSeller pursuant to the Purchase and Sale Agreement and the Purchasers relating to the Agreement.
(h) All Each Information Package (if prepared by the Seller or one of its Affiliates, or to the extent that information and each reportcontained therein is supplied by the Seller or an Affiliate), written information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by or on behalf of the Seller to the Purchaser Administrator in connection with this the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Administrator at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).furnished,
(i) The Seller’s principal place of business and chief executive office of (as such terms are used in the Seller UCC) and the office where the Seller it keeps its records or has access to such master records concerning the Sold Receivables are located at the addresses address referred to in Section 5.01(b). The Seller's chief executive office Sections 1(b) and principal place 2(b) of business has not changed within Exhibit IV to the past 12 monthsAgreement.
(j) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts (and the related lock-boxes) at such Lock-Box Banks, are specified in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts (and such other related lock-boxes) as have been notified to the Administrator in accordance with the Agreement) and all Lock-Box Accounts (and the related lock-boxes) are subject to Lock-Box Agreements. Seller is has not known granted to any Person, other than the Administrator as contemplated by the Agreement, dominion and does not use control of any tradename Lock-Box Account, or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company the right to take dominion and Trans-Continental Leaf Tobacco Corporation SAcontrol of any such account at a future time upon the occurrence of a future event.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation order of any governmental authoritycourt, which default arbitrator or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyGovernmental Authority.
(l) The balance sheets of Neither the Seller and nor any of its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the Affiliates has any direct or indirect ownership or other financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change interest in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)Purchasers.
(m) There is no pending orNo proceeds of any Purchase or reinvestment will be used for any purpose that violates any applicable law, to the best knowledge rule or regulation, including Regulations T, U or X of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Federal Reserve Board.
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar lawEach Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) All financing statements necessary No event has occurred and is continuing, or would result from a Purchase in order to perfect respect of, or reinvestment in respect of, the Purchaser's ownership interest in Purchased Interest or from the Receivables have been prepared and filedapplication of the proceeds therefrom, that constitutes a Termination Event or an Unmatured Termination Event.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.[RESERVED]
(q) The Seller has complied in all material respects with the Credit and Collection Policies of the Originators with regard to each Receivable originated by the Originators.
(r) The Seller has complied in all material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it.
(s) The Seller’s complete corporate name is set forth in the preamble to the Agreement, and it does not use and has not during the last six years used any other corporate name, trade name, doing-business name or fictitious name, except as set forth on Schedule III to the Agreement and except for names first used after the date of the Agreement and set forth in a notice delivered to the Administrator pursuant to Section 1(l)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not an “investment company,” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. In selecting the Eligible Receivables to be sold hereunderaddition, the Seller has is not used any selection criteria that are materially adverse to a “holding company,” a “subsidiary company” of a “holding company” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company” within the Purchaser or its assigneesmeaning of the Public Utility Holding Company Act of 1935, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and limited liability company formed, validly existing and in good standing under the laws of the State of VirginiaDelaware, and the Seller is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except where unless the failure to so qualify would not be likely have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or (iii) the ability of the Collection Agent to materially adversely affect the Purchaser's rights perform its obligations hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's ’s sale and contribution of Receivables hereunder and the Seller's ’s use of the proceeds of Purchases, (i) are within the Seller's powers, (ii’s limited liability company powers,(ii) have been duly authorized by all necessary limited liability company action, (iiiaction,(iii) do not contravene (1) the Seller's organizational documents, (2’s certificate of formation or limited liability company agreement,(2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's ’s interest in the Sold Transferred Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, Sales and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security Transferred Receivable after the sale or Collections. Immediately prior contribution thereof by the Seller to the sale Purchaser.
(f) The consolidated balance sheets of each Sold Receivable hereunderEDS and its consolidated subsidiaries as at September 30, 2002, and the related consolidated statements of income and consolidated statement of cash flows of EDS and its consolidated subsidiaries for the nine months then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of EDS and its consolidated subsidiaries as at such date and the results of the operations of EDS and its consolidated subsidiaries for the nine month period ended on such date, all in accordance with generally accepted accounting principles consistently applied, and since September 30, 2002 there has been no material adverse change in the business, operations, property or financial or other condition of EDS.
(g) There is no pending or threatened action, investigation or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to materially adversely affect the financial condition or operations of EDS, the Seller or any of their respective subsidiaries or the ability of the Seller to perform its obligations under this Agreement, or which is reasonably likely to affect the legal legality, validity or enforceability of this Agreement.
(h) No proceeds of any Purchase will be used by the Seller to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Transferred Receivable and beneficial owner of each such Sold Receivable, the Related Security is owned (immediately prior to its sale or contribution hereunder) by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase Purchase, it shall acquire valid and perfected first priority ownership of each Sold Purchased Receivable, the Related Security and the Collections with respect related thereto (or interests therein) free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken or not taken by the SellerPurchaser), and no effective financing statement or other instrument similar in effect covering any Sold ReceivableContract (under which Transferred Receivables arise, except with respect to any interest therein, Contract to the extent that Contract is identified on Schedule I) or any Transferred Receivable or the Related Security or the Collections with respect thereto is on file in any recording office office, except such as may be those filed in favor of the Purchaser in accordance with relating to this Agreement and those filed by the Seller pursuant to the EDS Contribution Agreement, or in connection with any Adverse Claim arising solely as the result of any action taken by the Purchaser. Each Receivable characterized in any Seller Report or other written statement made by or on behalf of the PurchaserSeller as an Eligible Receivable is, as of the date of such Seller Report or other statement, an Eligible Receivable.
(hk) All Each Seller Report (if prepared by the Seller, or to the extent that information and each reportcontained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (furnished, and does not no such document contains or will contain any untrue statement of a material fact or omits or will omit any information to state a material fact necessary in order to make the information statements contained therein therein, in light of the circumstances under which they were made, not misleading under the circumstances)misleading.
(il) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Transferred Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jm) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit B (as the same may be updated from time to time pursuant to Section 5.01(g)).
(n) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law“EDS”.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables Each Receivable received from EDS shall have been prepared and filedacquired by the Seller from EDS as a contribution by EDS to the capital of the Seller.
(p) The sales transfers of Transferred Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Electronic Data Systems Corp /De/)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generallyof creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(eb) Each Receivable sold hereunder is an Eligible Receivable.
The representations and warranties of each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (fi) No proceeds a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any Purchase will be used, directly representation or indirectly warranty made by the Seller, for related Transferor in the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Sellerapplicable Transfer Agreement. The Seller shall have no remaining property interest in obligation or liability with respect to any Sold Receivable, Related Security breach of a representation or Collections. Immediately prior warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of each Sold Receivable hereundera representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller is shall, in exchange for such substitute mortgage loan, provide the legal Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf warrants upon delivery of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller Mortgage Loans to the Purchaser in connection with this Agreement is or will be accurate in all material respects Depositor hereunder, as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).each, that:
(i) The principal place of business and chief executive office information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Seller Mortgage Loans, and the office information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Seller keeps its records related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has access been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to such records concerning the Sold Receivables are located requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the addresses Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) In the case of 98.91% of the Mortgage Loans, (by Scheduled Principal Balance as of the Cut-off Date) the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in Section 5.01(bthe lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. In the case of 98.91% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). The If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller's chief executive office , has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and principal place each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of business has not changed the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to each Mortgage Loan have been complied with;
(xii) Each Mortgage Loan is a “qualified mortgage” within the past 12 months.meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(jxiii) In the case of the Pool 3 Mortgage Loans, no Mortgage Loan imposes a Prepayment Charge for a term in excess of five years;
(xiv) With respect to Pool 1 Mortgage Loans:
(a) The Servicers for each Mortgage Loan will accurately and fully report its borrower credit files to all three credit repositories in a timely manner;
(b) No Mortgage Loan imposes a Prepayment Charge for a term in excess of five years;
(c) The Seller is not known by and has no reason to believe that any borrower will default under the related Mortgage Loan, or that foreclosure proceedings will be commenced with respect to any Mortgage Loan, within the six months immediately following the Closing Date;
(d) The outstanding Scheduled Principal Balance of each such Mortgage Loan does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇exceed the maximum original loan amount limitations set forth in the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Seller/Servicer Guide with respect to one-to-four family residential mortgage loans, Trans-Continental Leaf Tobacco Corporation Ltdwhether first lien or subordinate lien mortgage loans, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.applicable; and
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized and formed, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's ’s use of the proceeds of Purchasespurchases and reinvestments, (i) are within the Seller's ’s limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) do not contravene (1A) the Seller's organizational documents’s certificate of formation or limited liability company agreement, (2B) any law, rule or regulation applicable to the Seller, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables created pursuant to this Agreement). This Agreement Each of the Transaction Documents has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement the Transaction Documents or any other document to which it is a party to be delivered by it hereunderthereunder, except for the filing of UCC financing statements which are referred to therein.
(d) This Agreement Each of the Transaction Documents constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible ReceivableThe opening pro forma balance sheet of the Seller as at December 30, 2002, giving effect to the initial purchase to be made under this Agreement, a copy of which has been furnished to the Agent, fairly presents the financial condition of the Seller as at such date, in accordance with generally accepted accounting principles, and since December 30, 2002 there has been no material adverse change in the business, operations, property or financial or other condition of the Seller.
(f) No proceeds of There is no pending or threatened action, investigation or proceeding affecting the Seller before any Purchase will be usedcourt, directly governmental agency or indirectly by arbitrator which is reasonably likely to materially adversely affect the Seller, for the purpose, whether immediate, incidental financial condition or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U operations of the Board of Governors Seller or the ability of the Federal Reserve System Seller to perform its obligations under the Transaction Documents, or which is reasonably like to affect the legality, validity or enforceability of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofTransaction Documents.
(g) Sales No proceeds of Sold Receivables any purchase or reinvestment will be used by the Seller to acquire any equity security of a class which is registered pursuant to this Agreement will constitute a valid sale, transfer, and assignment Section 12 of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Securities Exchange Act of 1934.
(h) Immediately prior to the sale of each Sold Receivable hereunderpurchase by the Investors or the Banks, as the case may be, the Seller is the legal and beneficial owner of each such Sold Receivable, the Pool Receivables and Related Security free and clear of any Adverse Claim (other than any Adverse Claim arising solely Claim; upon each purchase or reinvestment, the Investors or the Banks, as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it case may be, shall acquire a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Receivable Interest in each Sold Receivable, Pool Receivable then existing or thereafter arising and in the Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no thereto. No effective financing statement or other instrument similar in effect covering any Sold ReceivableContract (under which Pool Receivables arise, except with respect to any interest therein, Contract to the extent that Contract is identified in Schedule III) or any Pool Receivable or the Related Security or the Collections with respect thereto is on file in any recording office office, except such as may be those filed in favor of the Purchaser in accordance with Agent relating to this Agreement and those filed by the Seller pursuant to the Originator Purchase Agreement. Each Receivable characterized in any Seller Report or in connection with any Adverse Claim arising solely as the result of any action taken other written statement made by or on behalf of the PurchaserSeller as an Eligible Receivable or as included in the Net Receivables Pool Balance is, as of the date of such Seller Report or other statement, an Eligible Receivable or properly included in the Net Receivables Pool Balance.
(hi) All Each Seller Report (if prepared by the Seller or one of its Affiliates, or to the extent that information and each reportcontained therein is supplied by the Seller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by or on behalf of the Seller to the Purchaser Agent, the Investors or the Banks in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Agent, Investors or the Banks, as the case may be, at such time) as of the date so furnished (furnished, and does not no such document contains or will contain any untrue statement of a material fact or omits or will omit any information to state a material fact necessary in order to make the information statements contained therein therein, in the light of the circumstances under which they were made, not misleading under the circumstances)misleading.
(ij) The the principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Pool Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jk) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts of the Seller at such Lock-Box Banks, are as specified in Schedule I hereto, as such Schedule I may be updated from time to time pursuant to Section 5.01(g). The Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remitted.
(l) Each purchase of a Receivable Interest and each reinvestment of Collections in Pool Receivables will constitute (i) a “current transaction” within the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and (ii) a purchase or other acquisition of notes, drafts, acceptances, open accounts receivable or other obligations representing part or all of the sales price of merchandise or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(m) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kn) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any orderwas formed on December 16, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 20112002, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller did not engage in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made any business activities prior to the date of this Agreement, there . The Seller has been no material adverse change in Subsidiaries.
(i) The fair value of the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in is greater than the debt ratings total amount of the Seller does notliabilities, in and of itselfincluding contingent liabilities, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting (ii) the present fair salable value of the assets of the Seller is not less than the amount that will be required to pay all probable liabilities of the Seller on its debts as they become absolute and matured, (iii) the Seller does not intend to, and does not believe that it will, incur debts or any of its Subsidiaries before any courtliabilities beyond the Seller’s abilities to pay such debts and liabilities as they mature and (iv) the Seller is not engaged in a business or a transaction, governmental agency and is not about to engage in a business or arbitrator a transaction, for which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filedSeller’s property would constitute unreasonably small capital.
(p) The sales With respect to each Pool Receivable, the Seller (i) shall have received such Pool Receivable as a contribution to the capital of Receivables the Seller by the Originator or (ii) shall have purchased such Pool Receivable from the Originator in exchange for payment (made by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between Originator in accordance with the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors provisions of the SellerOriginator Purchase Agreement) of cash, Deferred Purchase Price, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value. Each such sale has referred to in clause (ii) of the preceding sentence shall not have been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “an antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) debt owed by the Seller Originator to the PurchaserSeller and no such sale is or may be voidable or subject to avoidance under any Section of the Federal Bankruptcy Code.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Electronic Data Systems Corp /De/)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser that the statements contained in this Section 5, with respect to such Seller, are correct and complete as follows:of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 5).
(a) The Seller has the power and authority to execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver to the Purchaser the Seller Shares as contemplated hereby. No permit, consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is a corporation duly organized required in connection with the execution and validly existing under the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds transactions contemplated hereby.
(b) Neither the execution and delivery of Purchasesthis Agreement, (i) are within nor the Seller's powersconsummation of the transactions contemplated hereby or compliance with the terms and conditions hereof by the Seller will violate or result in a breach of any term or provision of any agreement to which any Seller is bound or is a party, (ii) have been duly authorized by all necessary company actionor be in conflict with or constitute a default under, (iii) do not contravene (1) or cause the Seller's organizational documentsacceleration of the maturity of any obligation of the Seller under any existing agreement or violate any order, (2) any lawwrit, injunction, decree, statute, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property any properties or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation assets of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action byThis Agreement has been duly and validly executed by the Seller, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or other similar laws affecting creditor's creditors' rights generallygenerally or by limitations, on the availability of equitable remedies.
(d) The Seller shall indemnify, defend and hold harmless Purchaser from and against all liabilities incurred by Purchaser, directly or indirectly, including without limitation, all reasonable attorney’s fees and court costs, arising out of or in connection with the purchase of the Seller’s respective Seller Shares set forth in this Agreement, except where fraud, intent to defraud or default of payment evolves on the part of Purchaser.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds The Seller owns the Seller Shares free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Purchase will be usedkind (collectively, directly or indirectly by the Seller“Liens”), for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U and upon delivery of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables Shares to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall will acquire good, valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect marketable title thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated herebyLiens. The Seller is not in default of a party to any contractual obligation or in violation of any orderoption, rule or regulation of any governmental authoritywarrant, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31purchase right, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood contract or commitment that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by could require the Seller to sell, transfer, or otherwise dispose of any capital stock of the Purchaser Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, and all proxy, or other transactions between agreement or understanding with respect to the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors voting of any capital stock of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the PurchaserCompany.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge sole right or remedy of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller to of such representation and warranty (other than a breach by the Purchaser Seller of the representations and warranties made pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and the Purchaser, have been and will 1.04(b)(viii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 The Depositor acknowledges and agrees that the representations and warranties of the United States Bankruptcy CodeSeller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not for constitute a breach of any representation or on account warranty made by the Transferor in the Transfer Agreement or Bring Down Letter. The Seller shall have no obligation or liability with respect to any breach of “antecedent debt”(as a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such term used breach also constitutes a breach of a representation or warranty made by the Transferor in Section 547 the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the United States Bankruptcy Code) owed Transfer Agreement and the Bring Down Letter by substituting for the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderaffected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller has not used any selection criteria that are materially adverse shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the Purchaser foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of May 31, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or its assigneesdates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, and is duly qualified to do business nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(b) The representations and warranties with respect to the Mortgage Loans made by each Transferor to the Seller in the related Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty made under the applicable Transfer Agreement, the Depositor shall have the right to require that the Seller cure such breach or effect such other remedy as is specified in the last paragraph of subsection (e).
(c) The Seller further represents and warrants to the Depositor, to the Trustee on behalf of the Certificateholders and to the Guarantor upon the delivery of the Mortgage Loans to be included in Pool 1 to the Depositor on the Closing Date, but solely as to each Mortgage Loan to be included in Pool 1, that:
(i) No authorization misrepresentation of a material fact or approval fraud in respect of the origination, modification or other action byamendment of any Mortgage Loan has taken place on the part of any person, including, without limitation, the related Mortgagor, any appraiser, any builder or developer or any party involved in the origination of such Mortgage Loan;
(ii) As of the Cut-off Date, no Mortgage Loan has failed to pay principal and interest due on the June 2000 payment due date. In addition, as of the Cut-off Date, no more than 1.58% of the Mortgage Loans have failed to pay principal and interest due on two consecutive payment due dates in the last 12 months (or since their origination, if less than 12 months) and no more than 0.20% of the Mortgage Loans have failed to pay principal and interest on two consecutive due dates more than once in the last 12 months (or since their origination, if less than 12 months). To the best of the Seller's knowledge, as of the Closing Date, no more than 7.16% of the Mortgage Loans have failed to pay principal and interest on the August 1, 2000 due date.
(iii) Each Mortgage Loan, as of the Closing Date, is either a fixed rate or an adjustable rate, conventional, residential Mortgage Loan having an original term to maturity from the date on which the first Scheduled Payment is due of not more than 30 years. Each Mortgage Note with respect to the Mortgage Loans will provide for a schedule of substantially level and equal Scheduled Payments which are sufficient to amortize fully the principal balance of such Mortgage Loan over a period of time equal to the amortization period of such Mortgage Note; provided, however, that certain fixed rate Mortgage Loans constituting approximately 0.29% of the Cut-Off Date-Balance are "balloon" mortgage loans that provide for a final Scheduled Payment substantially greater than the preceding monthly payment. All such balloon loans provide for monthly payment based upon a 30-year amortization schedule with a final balloon payment no later than the 15th year. No more than 0.06% of the Mortgages transferred to the Trustee are second liens on the Mortgaged Property.
(iv) No more than 0.15%, 1.37% and 30.29% of the Mortgage Loans, based on the aggregate Cut-Off Date Balance of the Mortgage Loans, had Loan-to-Value Ratios at origination exceeding 95%, 90% and 80%, respectively. No Mortgage Loans secured by a second lien had a combined Loan-to-Value Ratio at origination exceeding 100%;
(v) Notwithstanding clause (xvi) of this Section 1.04(c), each Mortgage Loan was originated, and the applicable seller credit grade was applied, substantially in accordance with the related Transferor's underwriting criteria attached hereto as Exhibit A;
(vi) No more than 2.56% of the Mortgage Loans are secured by manufactured housing, and none of the Mortgage Loans are secured by mobile homes;
(vii) Each Mortgage transferred to the Trustee is a valid first or second lien on the Mortgaged Property subject only to (A) the lien of current real property taxes and assessments, (B) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related mortgage loan, (C) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage and (D) in the case of a second lien, only to a first lien on such Mortgaged Property.
(viii) There is no notice to delinquent tax or filing assessment lien against any Mortgaged Property;
(ix) There are no mechanics' liens or claims for work, labor or material affecting any Mortgaged Property which are or may be a lien prior to, or equal with, the lien of such Mortgage except those which are insured against by the title insurance policy included in the Mortgage File maintained by the applicable Custodian with respect to the related Mortgage Loan;
(x) Each Mortgage Loan at origination complied in all material respects with applicable state and federal laws, including, without limitation, usury, equal credit opportunity, real estate settlement procedures, truth-in-lending and disclosure laws, and consummation of the transactions contemplated hereby, including, without limitation, the receipt of interest, will not involve the violation of any governmental authority such laws;
(xi) None of the Mortgage Loans are cooperative share mortgages;
(xii) If the improvements securing a Mortgage Loan were in a federally designated special flood hazard area as of the date of origination, flood insurance in the amount described in the related Reconstituted Servicing Agreement (and to the extent required by such agreement) covers the related Mortgaged Property (either by coverage under the federal flood insurance program or regulatory body by coverage by private insurers);
(xiii) A lender's policy of title insurance or a commitment (binder) to issue the same or an attorney's certificate or opinion of title was effective on the date of the origination of each Mortgage Loan and each such policy or certificate or opinion of title is required to be obtained, taken, given or made valid and remains in full force and effect;
(xiv) No selection procedure reasonably believed by the Seller to be adverse to the interests of the Certificateholders or the Guarantor, was used in selecting the Mortgage Loans for inclusion in the due executionTrust Fund; provided, delivery and performance however, that the Mortgage Loans were selected by the Seller from its portfolio of this Agreement or any other document to which it is a party to be delivered by it hereunder.mortgage loans originated in accordance with the related Transferor's underwriting criteria attached hereto as Exhibit A.
(dxv) This Agreement Each appraisal of a Mortgage Loan that was used to determine the appraised value of the related Mortgaged Property was conducted generally in accordance with the related Transferor's underwriting guidelines and included an assessment of the fair market value of the related Mortgaged Property at the time of the appraisal. At the time of origination, the value of each Mortgaged Property adequately supported the original loan amount of the related Mortgage Loan. The Mortgage File contains an appraisal of the applicable Mortgaged Property;
(xvi) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information provided with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects as of the Cut-off Date or such other date respecting which such information is given;
(xvii) Each Mortgage Loan constitutes a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1) and (3);
(xviii) Each Mortgage and Mortgage Note is the legal, valid and binding obligation of the Seller related Mortgagor and is enforceable by the Trustee or any co-trustee appointed pursuant to the Trust Agreement against the Seller Mortgagor in accordance with its terms, subject to applicable except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws affecting creditor's the enforcement of creditors' rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly generally and by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effectlaw, and all official rulings parties to each Mortgage Loan and interpretations thereunder or thereof.the Mortgagee had full legal capacity to execute all Mortgage Loan documents and to convey the estate therein purported to be conveyed; and the Mortgage and each Mortgage Note have been duly and validly executed by such parties;
(gxix) Sales of Sold Receivables by All individual insurance policies contain a standard mortgagee clause naming the Seller pursuant related Seller, its successors and assigns, as mortgagee. All premiums thereon have been paid. Each Mortgage obligates the Mortgagor thereunder to this Agreement will constitute a valid sale, transfermaintain all such insurance at the Mortgagor's cost and expense, and assignment upon the Mortgagor's failure to do so, authorizes the holder of the Sold Receivables Mortgage to obtain and maintain such insurance at the Purchaser, enforceable against creditors of, Mortgagor's cost and purchasers from, expense and to seek reimbursement therefor from the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately Mortgagor;
(xx) Any advances made after the date of origination of a Mortgage Loan but prior to the sale of each Sold Receivable hereunderCut-Off Date have been consolidated with the outstanding principal amount secured by the related Mortgage, and the Seller is secured principal amount, as consolidated, bears a single interest rate and single repayment term reflected on the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as Mortgage Loan Schedule. The consolidated principal amount does not exceed the result of any action taken by or on behalf original principal amount of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.related Mortgage Loan;
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kxxi) There are no actionsdefaults in complying with the terms of the Mortgage, suits and either (1) any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Sellerground rents which previously became due and owing have been paid, or any (2) an escrow of its properties, that (i) if adversely determined (individually or funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. Except for payments in the aggregate)nature of escrow payments, may including without limitation, taxes and insurance payments, to the best of Seller's knowledge, the related Servicer has not advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage Note, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is greater, to the day which precedes by one month the Due Date of the first installment of principal and interest;
(xxii) No improvement located on or being part of any Mortgaged Property is in violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all occupied portions of each Mortgaged Property and, with respect to the use and occupancy of the same, including but not limited to certificates of occupancy and fire underwriting certificates, have a material adverse effect been made or obtained from the appropriate authorities and such Mortgaged Property is lawfully occupied under the applicable law;
(xxiii) The proceeds of each Mortgage Loan have been fully disbursed and there is no obligation on the financial condition part of the mortgagee to make future advances thereunder and any and all requirements as to completion of any on-site or off-site improvements and as to disbursement of any escrow funds therefor have been complied with. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loans were paid and the Mortgagor is not entitled to any refund of amounts paid or due under the Mortgage Note;
(xxiv) There is no obligation on the part of the Seller or on any other party to make payments in addition to those made by the collectability Mortgagor;
(xxv) No Mortgage Loan has a shared appreciation feature, or other contingent interest feature;
(xxvi) Each Mortgage contains customary and enforceable provisions which render the rights and remedies of the holder thereof adequate remedy for the realization against the related Mortgaged Property of the benefits of the security, including (A) in the case of a material portion Mortgage designated as a deed of trust, by trustee's sale, and (B) otherwise by judicial or non-judicial foreclosure. There is no homestead or other exemption available to the related Mortgagor which would materially interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage subject to the applicable federal and state laws and judicial precedent with respect to bankruptcy and rights of redemption. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the proper procedures, the holder of the Sold Receivables or Mortgage Loan will be able to deliver good and merchantable title to the property;
(iixxvii) involve this Agreement or any transaction contemplated hereby. The All amounts received after the Cut-Off Date with respect to the Mortgage Loans to which the Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) entitled will be deposited into the financial condition of Collection Account within one Business Day after the Seller or (ii) the insurance of any Eligible Receivables under the Policy.Closing Date;
(lxxviii) The balance sheets of Seller has not transferred the Seller and its consolidated Subsidiaries as at December 31, 2011Mortgage Loans to the Depositor, and the related statements of income and retained earnings of Depositor has not transferred the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Mortgage Loans to the PurchaserTrust Fund, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors any of its creditors;
(xxix) All parties which have had any interest in the Mortgage Loan, whether as originator, mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were): (A) organized under the laws of the Sellerstate wherein the Mortgaged Property is located, or (B) qualified to do business in such state, or (C) federal savings and loan associations or national banks having principal offices in such state, or (D) not doing business in such state so as to require qualification or licensing, or (E) not otherwise required or licensed in such state. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 To the best of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.Sel
Appears in 1 contract
Representations and Warranties of the Seller. On The Seller hereby represents, warrants and covenants to the Closing Date, as well as on each Purchase DateDepositor, the Seller represents Trustee and warrants the Owners that as followsof the Startup Day:
(a) The Seller is a corporation limited partnership duly organized formed and validly existing under the laws of the State of Virginia, governing its creation and existence and is duly qualified to do business in every good standing in each jurisdiction where in which the nature of its business, or the properties owned or leased by it make such qualification necessary. The Seller has all requisite authority to own and operate its properties, to carry out its business requires it as presently conducted and as proposed to be so qualified, except where failure conducted and to so qualify would not be likely enter into and discharge its obligations under this Agreement and the other Operative Documents to materially adversely affect the Purchaser's rights hereunderwhich it is a party.
(b) The execution, execution and delivery and performance by the Seller of this Agreement and the other documents Operative Documents to be delivered which it is a party by it hereunder, including the Seller's sale Seller and its performance and compliance with the terms of Receivables hereunder this Agreement and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary company action, (iii) do corporate action on the part of the Seller and will not contravene (1) violate the Seller's organizational documentsAgreement of Limited Partnership or constitute a default (or an event which, (2with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any lawmaterial contract, agreement or other instrument to which the Seller is a party or by which the Seller is bound or violate any statute or any order, rule or regulation applicable to the Sellerof any court, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on governmental agency or affecting body or other tribunal having jurisdiction over the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerproperties.
(c) No authorization or approval or This Agreement and the other action byOperative Documents to which the Seller is a party, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionother parties hereto and thereto, delivery and performance by the Seller of this Agreement or any other document to which it is each constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legalvalid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its termsthe terms hereof and thereof, subject to except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's creditors' rights generallygenerally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) 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 governmental agency, which default would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or the consequences of which would materially and adversely affect its performance hereunder and under the other Operative Documents to which the Seller is a party.
(e) Each Receivable sold No litigation is pending with respect to which the Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which litigation might have consequences that would prohibit its entering into this Agreement or any other Operative Documents to which it is a party or that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder and under the other Operative Documents to which the Seller is an Eligible Receivablea party.
(f) No proceeds certificate of any Purchase will be usedan officer, directly statement furnished in writing or indirectly report delivered pursuant to the terms hereof by the SellerSeller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, for the purpose, whether immediate, incidental statement or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofreport not misleading.
(g) Sales of Sold Receivables by The statements contained in the Registration Statement which describe the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, matters or activities for which the Seller is responsible in accordance with the legal Operative Documents or which are attributable to the Seller therein are true and beneficial owner correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to the Seller required to be stated therein or necessary to make the statements contained therein with respect to the Seller, in light of the circumstances under which they were made, not misleading. The Registration Statement does not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. There is no fact known to the Seller that materially adversely affects or in the future may (so far as the Seller can now reasonably foresee) materially adversely affect the Seller or the Home Equity Loans or the ownership interests therein represented by the Certificates that has not been set forth in the Registration Statement.
(h) Upon the receipt of each Home Equity Loan (including the related Note) and other items of the Trust Estate by the Trustee under this Agreement, the Trust will have good title to such Sold Receivable, Home Equity Loan (including the related Note) and such other items of the Trust Estate free and clear of any Adverse Claim lien, charge, mortgage, encumbrance or rights of others, except as set forth in Section 3.04 (b) (ix) (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or liens which will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstancessimultaneously released).
(i) The principal place Neither the Seller nor any affiliate thereof will report on any financial statement any part of business the Servicing Fee as an adjustment to the sales price of the Home Equity Loans.
(j) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and chief executive office licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Certificates and the execution and delivery by the Seller of the Operative Documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other Operative Documents on the part of the Seller and the office where performance by the Seller keeps of its records or has access obligations under this Agreement and such of the other Operative Documents to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller which it is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAa party.
(k) There are no actionsThe origination practices used by the Seller with respect to the Home Equity Loans have been, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Sellerin all material respects, or any of its propertieslegal, that (i) if adversely determined (individually or proper, prudent and customary in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policymortgage lending business.
(l) The balance sheets transactions contemplated by this Agreement are in the ordinary course of business of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)Seller.
(m) There is no pending or, to Neither the best knowledge of the Seller, threatened action or proceeding affecting Trustee nor the Seller or has any obligation to register the Trust as an investment company under the Investment Company Act of its Subsidiaries before any court1940, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)amended.
(n) No transaction contemplated hereby requires compliance with The Seller is not insolvent, nor will it be made insolvent by the transfer of the Home Equity Loans, nor is the Seller aware of any bulk sales act or similar lawpending insolvency.
(o) All financing statements necessary The Seller received fair consideration and reasonably equivalent value in order to perfect exchange for the Purchaser's ownership interest sale of the interests in the Receivables have been prepared and filedHome Equity Loans.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made did not sell any interest in good faith and without any Home Equity Loan with any intent to hinder, delay or defraud creditors any of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaserits creditors.
(q) In selecting No material adverse change affecting any security for the Eligible Receivables Offered Certificates has occurred prior to be sold hereunderdelivery of and payment for the Offered Certificates.
(r) The Seller is not in default under any agreement involving financial obligations or on any outstanding obligation which would materially adversely impact the financial condition or operations of the Seller or legal documents associated with the transaction contemplated by this Agreement. It is understood and agreed that the representations and warranties set forth in this Section 3.03 shall survive delivery of the respective Home Equity Loans to the Trustee. Upon discovery by any of the Depositor, the Servicer, the Custodian, any Sub-Servicer, any Owner, the Seller has not used or the Trustee (each, for purposes of this paragraph, a "party") of a breach of any selection criteria that are of the representations and warranties set forth in this Section 3.03 which materially adverse and adversely affects the interests of the Owners, the party discovering such breach shall give prompt written notice to the Purchaser other parties. The Seller hereby covenants and agrees that within 60 days of its discovery or its assigneesreceipt of notice of breach, it shall cure such breach in all material respects or, with respect to a breach of clause (h) above, the Seller may (or may cause an affiliate of the Seller to) on or prior to the second Monthly Remittance Date next succeeding such discovery or receipt of notice (i) substitute in lieu of any Home Equity Loan not in compliance with clause (h) a Qualified Replacement Mortgage and, if the outstanding principal amount of such Qualified Replacement Mortgage as of the applicable Replacement Cut-Off Date is less than the Loan Balance of such Home Equity Loan as of such Replacement Cut-Off Date, deliver an amount (a "Substitution Amount") equal to such difference together with the aggregate amount of (A) all Delinquency Advances and Servicing Advances theretofore made with respect to such Home Equity Loan and (B) all Delinquency Advances which the Servicer has theretofore failed to remit with respect to such Home Equity Loan to the Servicer for deposit in the Principal and Interest Account or (ii) purchase such Home Equity Loan from the Trust at the Loan Purchase Price, which purchase price shall be delivered to the Servicer for deposit in the Principal and Interest Account. Notwithstanding any provision of this Agreement to the contrary, with respect to any Home Equity Loan which is not in default or as to which no default is imminent, no repurchase or substitution pursuant to Section 3.03, 3.04 or 3.06 shall be made unless the Seller obtains for the Trustee at the Seller's expense an opinion of counsel experienced in federal income tax matters to the effect that such a repurchase or substitution would not constitute a Prohibited Transaction for the Trust or the REMIC created hereunder or otherwise subject the Trust or the REMIC created hereunder to tax and would not jeopardize the status of the REMIC created hereunder as a REMIC (a "REMIC Opinion") addressed to and acceptable to the Trustee. The Seller shall also deliver an Officer's Certificate to the Trustee concurrently with the delivery of a Qualified Replacement Mortgage pursuant to Sections 3.03, 3.04 and 3.06 stating that such Home Equity Loan meets the requirements of the definition of a Qualified Replacement Mortgage and that all other conditions to the substitution thereof have been satisfied. Any Home Equity Loan as to which repurchase or substitution was delayed pursuant to this Section shall be repurchased or substituted for (subject to compliance with Section 3.03, 3.04 or 3.06, as the case may be) upon the earlier of (a) the occurrence of a default or imminent default with respect to such Home Equity Loan and (b) receipt by the Trustee of a REMIC Opinion.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Imc Home Equity Loan Trust 1997-3)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized incorporated and validly existing under the laws of the State of VirginiaDelaware, and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualifiedqualified (including without limitation, the State of Delaware) except where to the extent that the failure so to be so qualify qualified would not reasonably be likely expected to materially adversely affect the Purchaser's rights hereundercollectibility of the Transferred Receivables or the ability of the Seller to perform its obligations under this Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale and contribution of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1) the Seller's organizational documentscharter or by-laws, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Transferred Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder, or to ensure that the Purchaser will have an undivided ownership interest in and to the Receivables, the Related Security and the Collections which is perfected and prior to all other liens, except for the filing of UCC financing statements which are referred to herein (including, without limitation, the filing of releases of UCC financing statements described in Section 3.01(d) hereof and Section 3.01(d) of the Sale Agreement).
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, Sales and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Transferred Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(lf) The balance sheets of the Seller and its consolidated Subsidiaries subsidiaries as at December 31, 20112000, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and subsidiaries for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries subsidiaries for the period ended on such date, prepared on a basis consistent all in accordance with generally accepted accounting principles GAAP consistently applied. From , and since December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, 2000 there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)Seller.
(mg) There is no pending or, to the best knowledge of the Seller, or threatened action or proceeding affecting the Seller or any of its Subsidiaries subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in may materially adversely affect the financial statements condition or filings referred operations of the Seller or any of its subsidiaries or the ability of the Seller to in Section 4.01(l)perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement.
(nh) The use of all funds acquired by the Seller under this Agreement will not conflict with or contravene any of Regulations T, U and X of the Board of Governors of the Federal Reserve System as the same may from time to time be amended, supplemented or otherwise modified.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(oj) All Each Receivable purported to be sold by the Seller hereunder is an Eligible Receivable, and each such Receivable and each Transferred Receivable, together with the Related Security, is owned (immediately prior to its sale or contribution hereunder) by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Purchased Receivable and the Related Security and Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser), and no effective financing statements statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor of Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by the Purchaser.
(k) Each Seller Report (if prepared by the Seller, or to the extent that information contained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to perfect make the Purchaser's ownership interest statements contained therein, in the light of the circumstances under which they were made, not misleading.
(l) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to in Section 5.01(b).
(m) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit B (as the same may be updated from time to time pursuant to Section 5.01(g)).
(n) The Seller is not known by and does not use any tradename or doing-business-as name.
(o) With respect to any programs used by the Seller in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant to Section 6.01(b) so that such new Collection Agent shall have been prepared and filedthe benefit of such programs (it being understood that, however, the -- ----- ---------- ---- Collection Agent, if other than the Seller, shall be required to be bound by a confidentiality agreement reasonably acceptable to the Seller).
(p) The sales transfers of Transferred Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In If less than all of the Receivables of the Seller have been transferred to the Purchaser pursuant to this Agreement, no selection procedure was utilized by the Seller in selecting the Eligible Contributed Receivables to be sold hereunder, transferred to the Seller has not used any selection criteria that are materially Purchaser hereunder which is adverse to the interests of the Purchaser or would reasonably be expected to result in the Contributed Receivables containing a higher percentage of Defaulted Receivables than the percentage of Defaulted Receivables in the Receivables retained by the Seller.
(r) Immediately prior to the effectiveness of this Agreement the Purchaser has no Debt, Adverse Claims on any of its assigneesassets, liabilities (including contingent obligations) other than accrued administrative expenses (including, without limitation, accrued rent) in an aggregate amount not to exceed $20,000.
(s) The amendment to the Credit Facility referred to in Section 3.01(j) hereof has been executed by each Loan Party (as defined in the Credit Facility) and lenders constituting Required Lenders (as defined in the Credit Facility).
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Lexmark International Inc /Ky/)
Representations and Warranties of the Seller. On (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(ai) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement, the Assignment and Assumption Agreement and the B▇▇▇ of Sale;
(ii) The execution and delivery by the Seller of this Agreement, the Assignment and Assumption Agreement and the B▇▇▇ of Sale have been duly authorized by all necessary corporate action on the part of the State Seller; neither the execution and delivery of Virginiathis Agreement, the Assignment and is duly qualified to do business Assumption Agreement or the B▇▇▇ of Sale, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.certificate of incorporation or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement, the Assignment and Assumption Agreement and the other documents to be delivered by it hereunder, including the Seller's sale B▇▇▇ of Receivables hereunder Sale and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby and thereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation Each of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This , the Assignment and Assumption Agreement and the B▇▇▇ of Sale has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement and the B▇▇▇ of Sale, and no notice to or filing withthe Depositor, any governmental authority or regulatory body is required to be obtained, taken, given or made by in the Seller for the due execution, delivery and performance by the Seller case of this Agreement or any other document to which it is Agreement, constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement, the Assignment and Assumption Agreement or the B▇▇▇ of Sale or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its propertiesbusiness, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement, the Assignment and Assumption Agreement or the B▇▇▇ of Sale.
(b) The representations and warranties of the Transferor with respect to the Mortgage Loans in the Transfer Agreement were made as of the date of the Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and 1.04(b)(xviii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and 1.04(b)(xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and 1.04(b)(xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if adversely determined the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage Loan, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage Loan requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage Loan obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage Loan evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, may then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the financial condition value of the Seller related Mortgaged Property as security for the related Mortgage Loan or on the collectability of a use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material portion (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the Sold Receivables related Mortgage;
(xi) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, no Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Mortgage Loan or (ii) involve this Agreement or any transaction contemplated herebya single “variable rate” (within the meaning of Treas. The Seller is not Reg. §1.860G-1(a)(3)) in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) throughout the financial condition term of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.Mortgage Loan;
(lxv) The balance sheets As of the Seller and its consolidated Subsidiaries as at December 31Closing Date, 2011based on delinquencies in payment on the Mortgage Loans, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished would not initiate foreclosure proceedings with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made any Mortgage Loan prior to the next scheduled payment date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).on such Mortgage Loan;
(mxvi) There No Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no pending orMortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the best knowledge New Jersey Home Ownership Security Act of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which 2003 (N.J.S.A. 46:10B-22 et seq.); no Mortgage Loan is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller “High-Cost Home Loan” subject to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” New Mexico Home Loan Protection Act (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.N.M.
Appears in 1 contract
Representations and Warranties of the Seller. On In order to induce the Closing Date, as well as on each Purchase DateIssuer to enter into this Agreement, the Seller hereby represents and warrants for the benefit of the Issuer as followsof the date hereof that:
(a) The the Seller is a Delaware banking corporation duly organized formed, validly existing, and validly existing under the laws of in good standing in the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.Delaware;
(b) The executionthe Seller has the power and authority to own its property and to carry on its business as now conducted;
(c) the Seller has the power to execute, deliver and perform this Agreement and neither the execution and delivery and performance by the Seller of this Agreement and Agreement, nor the other documents to be delivered consummation by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use Seller of the proceeds of Purchasestransactions herein contemplated, nor the compliance by the Seller with the provisions hereof, will (i) are within conflict with or result in a breach of, or constitute a default under, any of the Seller's powersprovisions of the organizational documents of the Seller or any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or any of its properties, or any indenture, mortgage, contract or other instrument to which the Seller is a party or by which it is bound, or (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation or imposition of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables ’s property pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval terms of any such indenture, mortgage, contract or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.instrument;
(d) This the Seller is in compliance with the laws of each state in which any Property is located, to the extent necessary so that a subsequent holder of the Assets (including, without limitation, the Issuer or the Indenture Trustee) that is in compliance with the laws of such state would not be prohibited from owning or enforcing the Assets solely by reason of any such non-compliance by the Seller;
(e) assuming the due authorization, execution and delivery of this Agreement by the other party to this Agreement, this Agreement constitutes the a legal, valid and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its terms, subject to applicable terms (except as enforcement thereof may be limited by bankruptcy, insolvencyreceivership, conservatorship, reorganization, insolvency, moratorium or other similar laws affecting creditor's the enforcement of creditors’ rights generally.
(e) Each Receivable sold hereunder generally and by general equitable principles regardless of whether enforcement is an Eligible Receivable.considered in a proceeding in equity or at law);
(f) No proceeds there are no legal or governmental proceedings pending to which the Seller is a party or of which any Purchase will be usedproperty of the Seller is the subject which, directly or indirectly by if determined adversely to the Seller, for would reasonably be expected to materially adversely affect (i) the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U transfer of the Board Transferred Assets and the Asset Files, (ii) the execution and delivery by the Seller or enforceability against the Seller of Governors this Agreement or (iii) the performance of the Federal Reserve System of Seller’s obligations hereunder; and to the United States of AmericaSeller’s knowledge, as the same is from time to time in effect, and all official rulings and interpretations thereunder no such proceedings are threatened by governmental authorities or thereof.by others;
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is not, nor with the legal and beneficial owner giving of each such Sold Receivablenotice or lapse of time or both would be, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of or in default under any orderindenture, rule mortgage, deed of trust, loan agreement or regulation of any governmental authority, other agreement or instrument to which default or violation may have a material adverse effect upon (i) the financial condition of the Seller is a party or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of by which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before properties is bound;
(h) no consent, approval, authorization, order, license, registration or qualification of or with any court, such court or governmental agency or arbitrator which body is reasonably likely to have a material adverse effect, except as disclosed in required for the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables consummation by the Seller to of the Purchaser pursuant to transactions contemplated by this Agreement, and all other transactions between ;
(i) the Seller has not dealt with any broker, investment banker, agent or other person that may be entitled to any commission or compensation in connection with the consummation of any of the transactions contemplated hereby;
(j) the Seller is solvent and the Purchaser, have been and Seller’s sale of the Transferred Assets hereunder will be made in good faith and without not cause the Seller to become insolvent; and
(k) the Seller’s sale of the Transferred Assets is not undertaken with the intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser’s creditors.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to T&D that as followsof the Effective Date:
(a) The Seller is a corporation ___________, duly organized and organized, validly existing and in good standing under the laws of the State of Virginia, ______________and is duly qualified to do business in every jurisdiction all jurisdictions where the nature of its business requires such qualification is required or where such qualification is necessary for it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights perform its obligations hereunder.
(b) Seller has full power and authority to carry on its business as now being conducted, to enter into this Agreement and perform its obligations hereunder. The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) corporate or other organizational action and do not and will not contravene its organizational documents or conflict with, result in a breach of, or entitle Seller (1with due notice or lapse of time or both) the Seller's organizational documentsto terminate, (2) accelerate or declare a default under, any agreement or instrument to which it is a party or by which it is bound. The execution, delivery and performance of this Agreement by Seller will not result in any violation by it of any law, any order of any court or other agency of government, rule or regulation applicable to the Sellerit. Seller is not a party to, (3) nor subject to or bound by, any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest court or other charge governmental entity which may restrict or encumbrance upon or interfere with respect to any the performance of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerit.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes is the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its terms, except as such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, avoidance, preferential transfer, moratorium or other similar laws affecting creditor's now or hereafter in effect relating to creditors' rights generallygenerally and by general principles of equity that may limit the availability of equitable remedies and contractual obligations generally (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and the remedy of specific performance and injunctive relief may be subject to the discretion of the court before which any proceeding therefore may be brought.
(d) No consent, waiver, order, approval, authorization or order of, or registration, qualification or filing with, any court or other governmental agency or authority is required for the execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby, except such consents which will be or have been obtained, and as to such consents the same are final, are in full force and effect, and are not subject to any appeal or further judicial or administrative proceedings. No consent or waiver of any party to any contract to which Seller is a party or by which Seller is bound is required for the execution, delivery and performance by Seller of this Agreement.
(e) Each Receivable sold hereunder There is an Eligible Receivableno action, suit, grievance, arbitration or proceeding (other than proceedings of general applicability to the electrical generation, transmission and distribution industry and proceedings in the ordinary course of business to obtain authorizations, approvals and permits) pending or, to the knowledge of Seller, threatened against or affecting Seller at law or in equity, before any federal, state, municipal or other governmental court, department, commission, board, arbitrator, bureau, agency or instrumentality which prohibits or impairs Seller’s ability to execute and deliver this Agreement or to consummate any of the transactions contemplated hereby.
(f) No proceeds of any Purchase will be used, directly There are no bankruptcy or indirectly insolvency proceedings pending or being contemplated by the Seller, for the purposeor, whether immediateto its knowledge, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofthreatened against Seller.
(g) Sales No Event of Sold Receivables by the Default with respect to Seller pursuant to this Agreement will constitute has occurred and is continuing and no such event or circumstance would occur as a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by Seller entering into or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of performing its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading obligations under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Contract for the Sale of Energy/Capacity/Renewable Energy Credits
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants to the Purchaser as followsset forth below:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of VirginiaMassachusetts and has all requisite corporate power and authority to enter into this Agreement, to sell the Shares and is duly qualified to do business in every jurisdiction where the nature of perform its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights obligations hereunder.
(b) The execution, execution and delivery and performance of this Agreement by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by and validly authorized, and all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement corporate action has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice taken to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of make this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, except that the enforcement thereof may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly now or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar hereafter in effect covering any Sold Receivable, any interest therein, the Related Security relating to creditors' rights generally and to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstanceslaw).
(id) The principal place Since the date of the Balance Sheet, the Seller has conducted its business only in the ordinary course of business and chief executive office of the Seller and the office where the Seller keeps its records and, except as known or has access may be deemed to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not be known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇Mr. Miller in his capacity ▇▇ ▇▇▇▇▇▇▇▇ of the Company, Trans-Continental Leaf Tobacco Corporation Ltdthere has not been any:
(i) change in the Company's authorized or issued capital stock; grant of any stock option or right to purchase shares of capital stock of the Company; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, Trans-Continental Leaf Tobacco Corporation AG redemption, retirement, or other acquisition by the Company of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(TCLTC AGii) amendment to the organizational documents of the Company;
(iii) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, materially and adversely affecting the properties, assets, business, financial condition, or prospects of the Company;
(iv) sale (other than sales of inventory in the ordinary course of business) or lease of any asset or property of the Company materially and adversely affecting the business, financial condition, or prospects of the Company;
(v) material change in the accounting methods used by the Company;
(vi) material incurrence of any liability or obligation (absolute, accrued, contingent or otherwise), W.A. ▇▇▇▇▇ Company except items incurred in the ordinary course of business and Trans-Continental Leaf Tobacco Corporation SAconsistent with past practice; or
(vii) lapse of any rights to the use of any intellectual property materially and adversely affecting the business, financial condition, or prospects of the Company.
(ke) There are no actionsThe Seller has timely filed (or has had timely filed on its behalf) or, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate)case of federal and state tax returns that are not yet due, may will timely file (or will have a material adverse effect timely filed on its behalf) with the financial condition of appropriate tax authorities all federal and state tax returns required to be filed by them through the Closing Date.
(f) Any intercompany debt due from the Company to the Seller or PrimeSource Healthcare, Inc. will not remain as such on the collectability of a material portion balance sheet of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries Company as of and for the fiscal year then endedJune 30, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied2003. From December 31, 2011 to the date of this Agreement, other Other than as publicly disclosed by the set forth in this Section 2, Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been makes no material adverse change in the business, operations, property representations or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller warranties to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On 10.1 The Seller represents and warrants to the Closing DatePurchaser that:
(a) it is a corporation duly incorporated under the laws of its jurisdiction of incorporation, is not subject to any legal proceedings for an Insolvency Event and has not filed an application for an Insolvency Event, its annulment as a legal entity or the appointment of an Insolvency Officer;
(b) its execution, delivery and performance of this Deed and the transactions contemplated hereby are within its corporate powers and have been duly authorised by all necessary corporate action, require no action by or in respect of, or any filing, recording or enrolling with, any governmental body, agency court official or other authority, and do not contravene, or constitute a default under, any provision of applicable law or regulation, order, decree or other instrument binding upon the Seller or result in the creation or imposition of any Adverse Claim on the assets of the Seller) other than in favour of the Purchaser pursuant to this Deed;
(c) this Deed constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms;
(d) this Deed does not violate any contractual or other obligation binding upon the Seller;
(e) there is no floating charge in existence on the business of the Seller;
(f) all information furnished by it to the Purchaser for the purposes of or in connection with this Deed is true and accurate in every material respect at and as of the time furnished; and
(g) it has its “centre of main interests”, as well as on each Purchase Datethat term is used in Article 3(1) of the EU Insolvency Regulation, in England and Wales.
10.2 In addition, the Seller represents and warrants as followsto the Purchaser that:
(a) The Seller is a corporation duly organized and validly existing under the laws none of the State Sold Receivables have been subject to any attachment or are the subject of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.any encumbrance; UK/1494628/08 - 13 - 224362/30-40334413
(b) The executionthe amount, delivery due date and performance other details of each Sold Receivable as set out in the report delivered by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, Purchaser under Clause 2.2 are true and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.correct;
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required each Receivable purported to be obtained, taken, given or made by sold hereunder is subject to the Seller for the due execution, delivery Seller’s General Terms and performance by the Seller Conditions of this Agreement or any other document to which it is a party to be delivered by it hereunder.sale set out in Schedule 1; and
(d) This Agreement constitutes upon each Purchase Date hereunder the legal, valid and binding obligation of Purchaser shall acquire the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale ownership of each Sold Receivable hereunder, assigned on such Purchase Date and the Seller is the legal and beneficial owner of Related Security with respect thereto each such Sold Receivable, Receivable shall be free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf in favour of the Purchaser). When ) excluding for the avoidance of doubt (i) any general preferences arising in the ordinary course of business on the assets of the Seller and (ii) any set-off rights arising by operation of law.
10.3 The Purchaser makes contemplates reselling to a Purchase it shall acquire valid and perfected first priority ownership third party all or part of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by Receivables purchased from the Seller, in the context of a securitisation of Receivables of certain European subsidiaries and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest thereinAffiliates of WABCO Holdings Inc. In this connection, the Related Security or Purchaser may from time to time provide the Collections Seller with a copy of the representations, warranties, eligibility criteria and other relevant requirements of the proposed securitisation programme, and request that the Seller correspondingly to make additional representations and warranties and undertake additional covenants in respect thereto is on file in any recording office except such as of those Receivables sold hereunder which may be filed in favor of eligible for resale under the Purchaser in accordance securitisation programme. The Seller undertakes to use reasonable efforts to comply with this Agreement or request and to offer its full co-operation in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaserthis respect.
(h) All information 10.4 The representations and each report, exhibit, financial statement, document, book, record or report furnished or to warranties made in Clauses 10.1 and 10.2 shall be furnished in writing at any time given by the Seller to the Purchaser on the date hereof and on each Purchase Date. The representations and warranties made in accordance with Clauses 10.1 and 10.2 shall be given as soon as practicable after the Purchaser’s request to that effect and on each subsequent Purchase Date.
10.5 The Seller shall promptly indemnify the Purchaser against any losses resulting from the inaccuracy of any representation made in Clauses 10.1 and 10.2 or in accordance with Clause 10.4 other than any loss or expense resulting from negligence or fraud on the part of the Purchaser in connection with this Agreement is or will be accurate therewith and in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of no event shall the Seller and the office where the Seller keeps its records be liable for any special, punitive or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known consequential damages asserted by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Securitisation Deed (WABCO Holdings Inc.)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants as followsfollows as of the date hereof and as of the date of each Purchase hereunder:
(a) The Seller is a corporation limited liability company duly organized and formed, validly existing and in good standing under the laws of the State of Virginia, and Delaware. The Seller is duly qualified to do business business, and is in good standing, in every other jurisdiction where the nature of its business requires it to be so qualified, except where unless the failure to so qualify would not reasonably be likely expected to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunderTransaction Documents, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) do not contravene (1) the Seller's organizational documentscertificate of formation or limited liability company agreement, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables as created pursuant to this Agreement). This Agreement Each of the Transaction Documents has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Official Body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document the Transaction Documents to which it is a party or any other document to be delivered by it hereunderthereunder, except for the filing of UCC financing statements referred to in Section 3.01.
(d) This Agreement Each of the Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting creditor's the enforcement of creditors' rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder is an Eligible ReceivableThe opening pro forma balance sheet of the Seller as of June 30, 2003, giving effect to the initial Incremental Purchase to be made under this Agreement, a copy of which has been furnished to the Administrative Agent and each Managing Agent, fairly presents the financial condition of the Seller as of such date, in accordance with GAAP. Since its formation no change, occurrence or development has occurred (including, without limitation, with respect to any commenced or threatened material litigation or proceeding) that has had or could reasonably be expected to have a Material Adverse Effect.
(f) There is no pending or (to the best knowledge of the Seller) threatened action or proceeding affecting the Seller before any Official Body. The Seller is not in default in any material respect of any order of any Official Body.
(g) No proceeds of any Purchase will be usedused for a purpose that violates or would be inconsistent with, directly Regulation T, U or indirectly X promulgated by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereoftime.
(gh) Sales of Sold Receivables Each Receivable treated as or represented to be a Pool Receivable is owned by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the PurchaserClaims created hereunder). When the Purchaser makes The Purchasers have acquired a Purchase it shall acquire valid and perfected first priority ownership of security interest in each Sold Receivable, Pool Receivable now existing or hereafter arising and in the Related Security and the Collections with respect thereto thereto, in each case free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no (other than Adverse Claims created hereunder). No effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file filed in any recording office listing the Seller as debtor, covering any asset of the Seller except such as may be filed in favor of the Purchaser Administrative Agent in accordance with this Agreement Agreement. No effective financing statement or other instrument similar in connection with effect, is filed in any Adverse Claim arising solely recording office listing the Originator as the result of debtor, covering any action taken by Receivable, Related Security or on behalf Collections except such as may be filed in favor of the PurchaserSeller and assigned to the Administrative Agent in accordance with this Agreement. Prior to giving effect to any transfer under the Originator Purchase Agreement, all Receivables were payable to the Originator as principal for its own account. The Originator has no obligation (whether pursuant to any contract, any requirement of Law or otherwise) to remit any Collections on the Receivables to any Pharmaceutical Plan or to any other Person, other than to the Sellers and the Purchasers as provided in the Originator Purchase Agreement and this Agreement.
(hi) All Each Servicer Report (if prepared by any Transaction Party or one of their respective Affiliates, or to the extent that information and each reportcontained therein is supplied by any Transaction Party or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time (whether before, on or after the date of this Agreement) by the Seller or on behalf of any Transaction Party to the Administrative Agent, any Managing Agent or any Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Administrative Agent, such Managing Agent or such Purchaser, as the case may be, at such time) as of the date so furnished (furnished, and does not no such Servicer Report, information, exhibit, financial statement, document, book, record or report contains or will contain any untrue statement of a material fact or omits or will omit any information to state a material fact necessary in order to make the information statements contained therein therein, in the light of the circumstances under which they were made, not misleading under the circumstances)misleading.
(ij) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jk) The names and addresses of all the Deposit Account Banks together with the account numbers of the Deposit Accounts at such Deposit Account Banks are as specified in Schedule IV hereto, as such Schedule IV may be updated from time to time pursuant to Section 5.01(g).
(l) Since the date of its formation, the Seller is has not known by and does not use used any company name, tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Transname other than the name in which it has executed this Agreement. The Seller's Federal Employer Identification Number is 83-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA08665.
(km) There are no actionsThe Seller was formed on July 10, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of 2003 and the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or did not engage in any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made business activities prior to the date of this Agreement, there . The Seller has been no material adverse change in the business, operations, property or financial or other condition Subsidiaries. Medco directly owns 100% of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge membership interests of the Seller, threatened action or proceeding affecting the Seller or free and clear of any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)Adverse Claims.
(n) No transaction contemplated hereby requires compliance with any bulk sales act The Seller is not, and is not controlled by, an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or similar lawis exempt from all provisions of such Act.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filedThe Seller is Solvent.
(p) The sales With respect to each Receivable treated as or represented to be a Pool Receivable, the Seller (i) received such Receivable as a contribution to the capital of Receivables the Seller by the Originator or (ii) purchased such Receivable from the Originator in exchange for payment (made by the Seller to the Purchaser pursuant Originator in accordance with the provisions of the Originator Purchase Agreement) of cash, an addition to this Agreementthe principal amount of the Subordinated Note, or a combination thereof in an amount which constitutes fair consideration and all other transactions between reasonably equivalent value. No such sale or contribution was made for or on account of an antecedent debt owed by the Originator to the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each no such sale has been made for “reasonably equivalent value” (as such term or capital contribution is used in Section 548 or may be voidable or subject to avoidance under any section of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting Each Receivable included in the calculation of the Net Receivables Pool Balance on any date shall be an Eligible Receivables to be sold hereunder, Receivable as of such date.
(r) The Receivable Interest Percentage does not exceed the Seller Maximum Receivable Interest Percentage.
(s) No event has not used any selection criteria that are materially adverse to the Purchaser occurred and is continuing and no condition exists which constitutes a Termination Event or its assigneesIncipient Termination Event.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Medco Health Solutions Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser, as of the date hereof and on each subsequent date on which a Sale is made, as follows:
(a) The With respect to the Seller:
(i) the Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of VirginiaCalifornia, and is duly qualified to do business and is in good standing in every jurisdiction where in which the nature of its business requires it to be so qualified, except where qualified and which failure to so qualify would not be likely to materially adversely could have a material adverse affect the Purchaser's rights hereunder.on Seller;
(bii) The the Seller has the power and authority to own and convey all of its properties and assets and to execute and deliver this Sale Agreement and to perform the transactions contemplated hereby;
(iii) the execution, delivery and performance by the Seller of this Sale Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchasestransactions contemplated hereby, (i) are within the Seller's powers, (iiA) have been duly authorized by all necessary company actionaction on the part of the Seller, (iiiB) do not contravene or cause the Seller to be in default under (1) the Seller's organizational documentsarticles of incorporation and bylaws, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided with respect to any debt of the Seller or contained in Section 5.01(j)(i)(B)) any indenture, loan or credit agreement, lease, mortgage, security agreement, bond, note, or other agreement or instrument binding on or affecting the Seller or its property or (43) any law, rule, regulation, order, writ, judgment, award, injunction or decree applicable to, binding on or affecting the Seller or its property, and (ivC) do not result in or require the creation of any lien, security interest Adverse Claim;
(iv) each of this Sale Agreement and each Sale Assignment executed on or other charge prior to the Closing Date or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement related Sale Date has each been duly executed and delivered by on behalf of the Seller.;
(cv) No authorization or approval no consent of, or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other party, is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Sale Agreement or for the perfection of or the exercise by the Purchaser of any other document of its rights or remedies thereunder, each of which has been obtained and complete copies of which have been provided to which it is a party to be the Purchaser;
(vi) each Sale Agreement and each Sale Assignment delivered by it hereunder.
the Seller is (dor will be if not executed and delivered as of the date hereof) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with their respective terms;
(vii) there is no pending or threatened action, suit or proceeding, against or affecting the Seller, its termsAffiliates, subject its officers , or the property of the Seller, in any court or tribunal, or before any arbitrator of any kind or before or by any Governmental Authority (A) asserting the invalidity of this Sale Agreement, (B) seeking to applicable bankruptcyprevent the sale and assignment of any Program Contract or the consummation of any of the transactions contemplated thereby, insolvency(C) seeking any determination or ruling that might materially and adversely affect (1) the performance by this Sale Agreement, reorganization(2) the validity or enforceability of this Sale Agreement, moratorium (3) any Program Contract or other similar laws affecting creditor's rights generally(4) the federal income tax attributes of the Sales.
(eviii) Each Receivable sold hereunder no injunction, writ, restraining order or other order of any material nature adverse to the Seller or the conduct of its business or which is an Eligible Receivable.inconsistent with the due consummation of the transactions contemplated by this Sale Agreement has been issued by a Governmental Authority;
(fix) No proceeds no defaulted Debt exists under any instrument or agreement evidencing, securing or providing for the issuance of any Purchase will be used, directly or indirectly by Debt of the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.;
(gx) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred address of the Seller set forth in the designated space beneath its signature line in this Sale Agreement and, there are now no, and during the past four months there have not been, any other locations where the Seller is located (as that term is used in the UCC in the state of such location) except that, with respect to such changes occurring after the date of this Sale Agreement, as shall have been specifically disclosed to the Purchaser in Section 5.01(b). The Seller's chief executive office writing;
(xi) the legal name of the Seller is as set forth at the beginning of this Sale Agreement and principal place of business the Seller has not changed within its name in the past 12 months.last six years, and during such period, the Seller did not use, nor does the Seller now use any trade-names, fictitious names, assumed names or "doing business as" names except that, with respect to such changes occurring after the date of this Sale Agreement, as shall have been specifically disclosed to the Purchaser in writing;
(jxii) The the Seller is solvent and will not known become insolvent after giving effect to the transactions contemplated by this Sale Agreement; the Seller is paying its debts as they mature; the Seller has not sold any Program Contract to the Purchaser with intent to hinder, delay or defraud any entity to which the Seller was, or became, after the date that such transfer was made, indebted; the Seller's sales of the Program Contract to the Purchaser have been and does will be made for reasonably equivalent value and fair consideration; the Seller has not use any tradename or doing-business-incurred debts beyond its ability to pay as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company they mature; and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, after giving effect to the transactions contemplated by this Sale Agreement, will have an adequate amount of capital to conduct its business in the foreseeable future;
(xiii) for federal income tax, reporting and accounting purposes, the Seller will treat the sale of each Sold Program Contract sold pursuant to this Sale Agreement as a sale, or absolute assignment, of its full right, title and ownership interest in such Sold Program Contract to the Purchaser, and the Seller has not and will not account for or treat the transactions contemplated by this Sale Agreement in any other manner;
(xiv) the Seller has and maintains all permits, licenses, authorizations, registrations, approvals and consents of Governmental Authorities (including, without limitation, Sales Finance Company Licenses, if any, necessary for (A) the activities and business of the Seller as currently conducted and as proposed to be conducted, (B) the ownership, use, operation and maintenance of its properties, that facilities and assets and (iC) if adversely determined the performance by the Seller of this Sale Agreement;
(individually xv) the Seller has filed on a timely basis all tax returns (federal, state, and local) required to be filed and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Seller;
(xvi) each pension plan or profit sharing plan to which the Seller is a party has been fully funded in accordance with the aggregate)obligations of the Seller set forth in such plan;
(xvii) with respect to the Seller, may there has occurred no event which has or is reasonably likely to have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or its ability to perform its obligations under this Sale Agreement;
(ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (ixviii) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The consolidated balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, of the date of its most recently completed fiscal year and the related statements of income and retained earnings shareholders' equity of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, and commencing with the fiscal year ending December 31, 1999 certified by an independent certified public accountant together with all quarterly reports with respect to completed fiscal quarters occurring after such fiscal year until the date of this representation and warranty, copies of which have been furnished to the Purchaser, fairly present the consolidated financial condition condition, business and operations of the Seller and its consolidated Subsidiaries as at such date and the consolidated results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent all in accordance with generally accepted accounting principles consistently applied. From December 31, 2011 to the and since such date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the businessany such condition, business or operations, property or financial or other condition of ;
(xix) the Seller (it being understood that (i) a change has valid business reasons for selling its interests in the debt ratings of Sold Program Contracts rather than obtaining a loan with the Sold Program Contracts as collateral;
(xx) the Seller does not, in has not disclosed and will not disclose to any Dealer or Obligor under a Program Contract the existence of itself, constitute a material adverse change and (ii) this representation is made only as of any insurance which has been or may be purchased by the date of this Agreement).Purchaser to protect its interests under the Program Contracts,
(mxxi) There is no pending or, all information heretofore or hereafter furnished with respect to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser in connection with any transaction contemplated by this Sale Agreement is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(b) with respect to each Program Contract sold pursuant to this Sale Agreement, Seller shall represent and warrant to Purchaser as follows on such Sale Date:
(i) Each Program Contract (1) arises from the sale of an Automobile and which delivery and acceptance has been fully performed by the Obligor and the Dealer party thereto, (2) arises from the normal course of the Dealer's business, (3) the Obligor of which is a natural person residing in any state, (4) the Obligor of which is not a government or a governmental subdivision or agency, (5) the Obligor of which is not a minor and has full power and capacity to enter into such Program Contract, (6) is denominated and payable in dollars in the United States, (7) is in full force and effect and constitutes the legal, valid and binding obligation of the Obligor in accordance with its terms, (8) is not subject to any dispute, litigation, counterclaim or defense, or any offset, right of offset, and any exercisable right of rescission, (9) has an original term to maturity of not less than 24 nor more than 72 months, (10) provides for equal monthly payments which will cause the Program Contract to fully amortize during its term (11) has an Amount Financed that has been fully disbursed of not less than $5,000 or more than $30,000, (12) has an annual percentage rate of not less than the lesser of (A) rates as determined in the Originator's Manual, and (B) the maximum interest rate permissible by law with respect to such Program Contract, (13) together with the contract applicable thereto, does not contravene any requirements of law applicable thereto, (14) is a Program Contract with respect to which all other transactions between required consents, approvals and authorizations have been obtained, (15) is a Program Contract secured by a purchase money security interest in the Automobile that has been recorded or applied for in the name of the Seller and assigned to the Purchaser which security interest is or is reasonably expected to be in full force and effect, in each case, subject to no prior or equal liens, claims or encumbrances, (16) was purchased by the Seller using and conforming to the Originator's Manual, (17) requires the Seller to be named as loss payee or beneficiary (as applicable) under an insurance policy with respect to the Automobile related to such Program Contract and entitles the Seller to the benefits of such insurance policy, (18) requires no additional action by the Seller before becoming a valid and binding obligation of the Obligor thereunder, enforceable against such Obligor in accordance with its terms, (19) relates to an Automobile with respect to which the Obligor made at least the minimum down payment as specified in the Originator's Manual and in the form and manner described in the Originator's Manual, including, but not limited to a down payment that is made with the Obligor's own cash money and which is not borrowed, deferred (except for deferred payments that are allowed by law and disclosed as deferred in the Contract) or obtained as a cash advance on a credit card or other open line of credit, and (20) complies in all respects with the requirements of the Originator's Manual .
(ii) Each Program Contract was originated by a Dealer that had all necessary licenses and permits to originate Program Contracts in the state where such Dealer was located, was fully and properly executed by the parties thereto, was purchased by the Seller from such Dealer under an existing Dealer Agreement with the Seller, was a Dealer and was validly assigned by the Dealer to the Seller.
(iii) Each Program Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for realization against the collateral security.
(iv) Each Program Contract was originated by a Dealer to an Obligor and was sold by the Dealer to the Seller without any fraud or material misrepresentation on the part of such Dealer or on the part of the Obligor.
(v) Such Program Contract complied at the time it was purchased by the Seller including the sale of any related physical damage, credit life and credit accident and death insurance, Gap or debt cancellation coverage, and any extended service contracts at the time it was originated or made, as of the date hereof in all material respects with all requirements of applicable federal, state and local laws and regulations thereunder, including usury laws, the federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations B and Z, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the ▇▇▇▇-▇▇▇▇▇▇▇▇ Act, and state adaptations of the National Consumer Act and of the Uniform Consumer credit Code, other consumer credit laws and equal credit opportunity and disclosure laws and other applicable legal requirements.
(vi) Such Program Contract has not been satisfied, subordinated or rescinded, nor has the related Automobile been released from the lien granted by such Program Contract, in whole or in part.
(vii) No provision of any Program Contract has been waived, altered, extended, revised or otherwise modified in any respect since its origination. No Program Contract has been modified as a result of the Soldier's and Sailor's Relief Act of 1940, as amended.
(viii) No right of rescission, setoff, counterclaim or defense has been asserted or threatened against the Seller with respect to such Program Contract.
(ix) The lien certificate for each Automobile either (i) shows the Purchaser or Seller or their nominee named as the original secured party under each Program Contract or (ii) has been applied for in the name of the Purchaser or Seller or their nominee. If the Program Contract was originated in a state in which a filing or recording is required of the secured party to perfect a security interest in motor vehicles, such filing or recording has been duly made to show the Purchaser or Seller or their nominee named as the original secured party under the related Program Contract. Immediately after the sale, transfer and assignment thereof to the Purchaser, have been and each Program Contract will be made secured by an enforceable and perfected security interest in good faith and without intent to hinder, delay or defraud creditors the Automobile in favor of the Seller. Each Purchaser or Seller as secured party, which security interest is prior to all other liens and security interests in such Automobile (except, as to priority, for any lien for taxes, labor or materials affecting an Automobile that attach to the Automobile after the sale has been made for “reasonably equivalent value” (as such term of the Program Contract) and which lien is used in not a preference under Section 548 544 of the United States Bankruptcy Code. For purposes of this section, Seller also represents and warrants that the lien, as applied for pursuant to the requirements herein, will be obtained in a timely manner such as not to adversely affect the interests of Purchaser in the Automobile.
(x) No liens or claims have been asserted or filed for taxes, work, labor or materials relating to the Automobile that are liens prior to, or equal or coordinate with, the security interest in the Automobile granted by any Program Contract, and the Obligor has good and marketable title to the Automobile subject to no liens other than the security interest under the Program Contract.
(xi) Upon sale hereunder, such Program Contract has not been sold, transferred, assigned, offered for purchase, or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed pledged by the Seller to any Person or Financial Institution other than the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, ; the Seller has not used any selection criteria that are materially adverse good and marketable title to the Purchaser or its assignees.such Program Contract free and clear of all liens and rights of ot
Appears in 1 contract
Sources: Contract Sale Agreement (Consumer Portfolio Services Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller hereby represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of Virginiajurisdiction set forth in Schedule IV hereto (as such Schedule IV is modified in accordance herewith), and is duly qualified to do business business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except where unless the failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's ’s use of the proceeds of Purchasespurchases and reinvestments, (i) are within the Seller's ’s corporate powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1) the Seller's organizational documents’s charter or by-laws, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other Adverse Claim, charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables created pursuant to this Agreement). This Agreement Each of the Transaction Documents to which the Seller is a party has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement the Transaction Documents or any other document to which it is a party to be delivered by it hereunderthereunder, except for the filing of UCC financing statements which are referred to therein.
(d) This Agreement Each of the Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the rights generallyof creditors generally and general equitable principles (whether considered in a proceeding at law or in equity).
(e) Each Receivable sold hereunder is an Eligible ReceivableSince December 31, 2008 there has been no material adverse change in the business, operations, financial condition or prospects of the Seller other than (i) the commencement of the Bankruptcy Case and the Canadian Case and (ii) the continuation of the circumstances giving rise to the filing thereof or which customarily occur as a result thereof.
(f) No proceeds Other than the filing of any Purchase will be usedthe Bankruptcy Case and the Canadian Case and matters directly related thereto, directly or indirectly by there are no pending or, to the Seller’s knowledge, for threatened actions, investigations or proceedings affecting the purposeSeller before any court, whether immediate, incidental governmental agency or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofarbitrator which may have a Material Adverse Effect.
(g) Sales No proceeds of Sold Receivables by the Seller any purchase or reinvestment will be used to acquire any equity security of a class which is registered pursuant to this Agreement will constitute a valid sale, transfer, and assignment Section 12 of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Securities Exchange Act of 1934.
(h) Immediately prior to the sale of each Sold Receivable hereunderpurchase from the Seller by the Banks, the Seller is the legal and beneficial owner of each such Sold Receivable, the Pool Receivables and Related Security free and clear of any Adverse Claim (other than any Adverse Claim arising solely as Claim; upon each purchase or reinvestment, the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it Banks shall acquire a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Receivable Interest in each Sold Receivable, Pool Receivable then existing or thereafter arising and in the Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no thereto. No effective financing statement or other instrument similar in effect covering any Sold Receivable, Contract or any interest therein, Pool Receivable or the Related Security or the Collections with respect thereto is on file in any recording office office, except such as may be those filed in favor of the Purchaser in accordance with Agent relating to this Agreement and those filed by the Seller pursuant to the Originator Purchase Agreement. Each Receivable characterized in any Seller Report or in connection with any Adverse Claim arising solely as the result of any action taken other written statement made by or on behalf of the PurchaserSeller as an Eligible Receivable or as included in the Net Receivables Pool Balance is, as of the date of such Seller Report or other statement, an Eligible Receivable or properly included in the Net Receivables Pool Balance.
(hi) All Each Seller Report (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or an Affiliate), including the calculations therein, and each reportall information, exhibitexhibits, financial statementstatements, documentdocuments, bookbooks, record records or report reports furnished or to be furnished in writing at any time by or on behalf of the Seller to the Purchaser Agent or the Banks in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser Agent or the Banks, as the case may be, at such time) as of the date so furnished (furnished, and does not no such document contains or will contain any untrue statement of a material fact or omits or will omit any information to state a material fact necessary in order to make the information statements contained therein therein, in the light of the circumstances under which they were made, not misleading under the circumstances)misleading.
(ij) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Pool Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller's chief executive Seller is located in the jurisdiction of organization set forth in Schedule IV hereto (as modified in accordance herewith) for purposes of Section 9-307 of the UCC as in effect in the State of New York; and the office and principal place in the jurisdiction of business has not changed within organization of the past 12 monthsSeller in which a UCC financing statement is required to be filed in order to perfect the security interest granted by the Seller hereunder is set forth in Schedule IV hereto (as modified in accordance herewith).
(jk) The names and addresses of all the Deposit Banks, together with the post office boxes and account numbers of the Lock-Boxes and Deposit Accounts of the Seller at such Deposit Banks, are as specified in Schedule V hereto, as such Schedule V may be amended from time to time pursuant to Section 5.01(g). The Lock-Boxes and Deposit Accounts are the only post office boxes and accounts into which Collections of Receivables are deposited or remitted. The Seller has delivered to the Agent a fully executed Deposit Account Agreement with respect to each Deposit Account and any associated Lock-Boxes.
(l) [Reserved].
(m) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kn) There are no actionsThe Seller was incorporated on October 20, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting 2005, and the Seller, or any of its properties, that Seller (i) if adversely determined (individually or did not engage in the aggregate)any business activities prior to October 27, may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or 2005 and (ii) involve this has not engaged in business activities inconsistent with the terms of all the transactions contemplated by the Existing Originator Purchase Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made Existing RPA prior to the date of this Agreement, there . The Seller has been no material adverse change in Subsidiaries.
(i) The fair value of the business, operations, property or financial or other condition of the Seller is greater than the total amount of liabilities, including contingent liabilities, of the Seller, (ii) the present fair salable value of the assets of the Seller is not less than the amount that will be required to pay all probable liabilities of the Seller on its debts as they become absolute and matured, (iii) the Seller does not intend to, and does not believe that it being understood that will, incur debts or liabilities beyond the Seller’s abilities to pay such debts and liabilities as they mature and (iv) the Seller is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which the Seller’s property would constitute unreasonably small capital.
(p) With respect to each Pool Receivable, the Seller (i) shall have received such Pool Receivable as a change in contribution to the debt ratings capital of the Seller does not, in and of itself, constitute a material adverse change and by the U.S. Originator or (ii) this representation is shall have purchased such Pool Receivable from an Originator in exchange for payment (made only as by the Seller to such Originator in accordance with the provisions of the date Originator Purchase Agreement) of this Agreementcash or the Deferred Purchase Price, or a combination thereof, in an amount which constitutes fair consideration and reasonably equivalent value. Each such sale referred to in clause (ii) of the preceding sentence shall not have been made for or on account of an antecedent debt owed by any Originator to the Seller and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code or any other state, Canadian or provincial law.
(q) The Seller has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with Canadian generally accepted accounting principles).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(nr) No transaction contemplated hereby by this Agreement or any of the other Transaction Documents with respect to the Seller requires compliance with any bulk sales act or similar law.
(os) All financing statements necessary No Receivable originated by the Canadian Originator, the Obligor of which has a billing address in order Canada, was issued for an amount in excess of the fair market value of the merchandise, insurance or services provided by the Canadian Originator to perfect which the Purchaser's ownership interest Receivable relates.
(t) No Contract or any other books, records or other information relating to any Receivable originated by the Canadian Originator, the Obligor of which has a billing address in Canada, contain any “personal information” as defined in, or any other information regulated under (i) the Personal Information Protection and Electronic Documents Act (Canada), or (ii) any other similar statutes of Canada or any province in force from time to time which restrict, control, regulate or otherwise govern the collection, holding, use or communication of information.
(u) The Seller has marked its master data processing records evidencing Pool Receivables, including master data processing records evidencing Pool Receivables arising out of the sale of lumber, with a legend evidencing that Receivable Interests related to such Pool Receivables have been prepared and filedsold in accordance with this Agreement.
(pv) The sales Seller is not engaged nor will it engage, principally or as one of Receivables its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors Board of Governors of the SellerFederal Reserve System), or extending credit for the purpose of purchasing or carrying margin stock. Each such sale has been made for The Seller is not or is not required to be registered as an “reasonably equivalent valueinvestment company” (as such term is used in Section 548 under the Investment Company Act of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser1940.
(qw) In selecting The representations and warranties of the Eligible Receivables to be sold hereunderServicer (so long as the Servicer is ACSC, the Seller has not used ▇▇▇▇▇▇▇ or any selection criteria other Subsidiary of ▇▇▇▇▇▇▇ that is a US Person) set forth in Sections 4.02(g), 4.02(k) and 4.02(l) are materially adverse to the Purchaser or its assigneestrue and correct.
Appears in 1 contract
Sources: Receivables Purchase Agreement (AbitibiBowater Inc.)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business and is in good standing as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to be so qualify qualified would not be likely to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this the Agreement and the other documents Transaction Documents to be delivered by which it hereunderis a party, including the Seller's sale of Receivables hereunder and the Seller's its use of the proceeds of Purchases, purchases and reinvestments: (i) are within the Seller's its corporate powers, ; (ii) have been duly authorized by all necessary company corporate action, ; (iii) do not contravene or result in a default under or conflict with: (1A) the Seller's organizational documentsits charter or bylaws or code of regulations, as applicable (2B) any law, rule or regulation applicable to the Sellerit, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on indenture, loan agreement, mortgage, deed of trust or affecting the Seller other material agreement or its property instrument to which it is a party or by which it is bound, or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller it or any of its property, ; and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for properties. The Agreement and the transfer of the Seller's interest in the Sold Receivables pursuant other Transaction Documents to this Agreement). This Agreement has which it is a party have been duly executed and delivered by the Seller.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required to be obtained, taken, given or made by the Seller for the its due execution, delivery and performance by the Seller of this the Agreement or any other document Transaction Document to which it is a party party, other than the Uniform Commercial Code filings referred to be delivered by it hereunderin Exhibit II to the Agreement, all of which shall have been filed on or before the date of the first purchase hereunder and such approvals that have been obtained.
(d) This Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws from time to time in effect affecting creditor's the enforcement of creditors’ rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or, to the Seller’s best knowledge, threatened action or proceeding affecting the Seller or any of its properties before any Governmental Authority or arbitrator.
(f) No proceeds of any Purchase purchase or reinvestment will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, used to acquire any equity security of buying or carrying any “margin stock” within the meaning of Regulation U a class that is registered pursuant to Section 12 of the Board Securities Exchange Act of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof1934.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivablethe Pool Receivables and Related Security, free and clear of any Adverse Claim Claim. Upon each Purchase or reinvestment, the Administrator (other than any Adverse Claim arising solely as for the result benefit of any action taken by each Purchaser) shall acquire a valid and enforceable perfected undivided percentage ownership or on behalf security interest, to the extent of the Purchaser). When Purchased Interest, in each Pool Receivable then existing or thereafter arising and in the Purchaser makes a Purchase it shall acquire valid Related Security, Collections and perfected first priority ownership of each Sold Receivable, Related Security and the Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim arising as Claim. The Agreement creates a security interest in favor of the result Administrator (for the benefit of each Purchaser) in the Pool Assets, and the Administrator (for the benefit of each Purchaser) has a first priority perfected security interest in the Pool Assets, free and clear of any action taken or not taken by the Seller, and no Adverse Claims. No effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto Pool Asset is on file in any recording office office, except such as may be those filed in favor of Greetings pursuant to the Purchaser in accordance with this Receivables Sale Agreement, AGSC pursuant to the Purchase and Sale Agreement, the Seller pursuant to the Sale and Contribution Agreement and the Administrator (for the benefit of each Purchaser) pursuant to the Agreement, or in connection with any Adverse Claim arising solely respect of which the Administrator has received evidence satisfactory to the Administrator of acknowledgment copies, or time-stamped receipt copies, of proper financing statements releasing or terminating, as the result applicable, all security interests and other rights of any action taken by or on behalf of the PurchaserPerson in such Pool Asset.
(h) All Each Information Package (if prepared by the Seller or one of its Affiliates, or to the extent that information and each reportcontained therein is supplied by the Seller or an Affiliate of the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished furnished, in writing each case, in writing, at any time by or on behalf of the Seller to the Administrator or any Purchaser Agent in connection with this the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (furnished, and does not and will not contain any material misstatement of fact or omit to state a material fact or any information fact necessary to make the information statements contained therein not misleading under the circumstances)misleading.
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months[RESERVED].
(j) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the Administrator in accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements (except as otherwise agreed to in writing by the Administrator and each Purchaser Agent or as provided in Section 4.3). Seller is has not known granted to any Person, other than the Administrator as contemplated by the Agreement, dominion and does not use control of any tradename Lock-Box Account, or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company the right to take dominion and Trans-Continental Leaf Tobacco Corporation SAcontrol of any such account at a future time or upon the occurrence of a future event.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation order applicable to it of any governmental authoritycourt, which default arbitrator or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyGovernmental Authority.
(l) The balance sheets Seller does not have any direct or indirect ownership or other financial interest in any Purchaser.
(m) No proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, rule or regulation, including Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing that constitutes a Termination Event or an Unmatured Termination Event and no event would result from a purchase in respect of, or reinvestment in respect of, the Purchased Interest or from the application of the proceeds therefrom that constitutes a Termination Event or an Unmatured Termination Event.
(p) The Seller has complied in all material respects with the applicable Credit and its consolidated Subsidiaries as at December 31Collection Policy.
(q) The Seller has complied in all material respects with all of the terms, 2011covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it and all laws, rules, regulations and orders that are applicable to it.
(r) The Seller’s complete corporate name is set forth in the preamble to the Agreement, and it does not use and has not during the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries last six years used any other corporate name, trade name, doing-business name or fictitious name, except as of and for the fiscal year then ended, copies of which have been furnished set forth on Schedule III to the Purchaser, fairly present the financial condition of the Seller Agreement and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries except for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to names first used after the date of this Agreement, other than as publicly disclosed by the Seller Agreement and set forth in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior a notice delivered to the date Administrator pursuant to Section 1(k)(iv) of this Exhibit IV to the Agreement.
(s) The Seller is not an “investment company,” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(t) Each Contract with respect to each Receivable is effective to create, and has created, a legal, valid and binding obligation of the related Obligor to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(u) Since its most recent fiscal year end, there has been no material adverse change in the business, operations, property financial condition, properties or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge assets of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Purchase Agreement (American Greetings Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as followsto Purchaser that:
(a) The Seller is a corporation duly organized and validly existing under the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing individual residing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd▇▇▇ ▇▇▇, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company ▇▇, and Trans-Continental Leaf Tobacco Corporation SAis the Chief Executive Officer of the Company, validly existing and in good standing under the laws of the State of Nevada.
(kb) There are no actionsSeller has authorized the execution, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Sellerdelivery and performance of this Purchase Agreement, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition and each of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction transactions contemplated hereby. The No other action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Purchase Agreement shall constitute a valid and binding obligation of Seller, enforceable against Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policyaccordance with its terms.
(lc) The balance sheets No consent, approval, authorization or order of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or body or arbitrator which having jurisdiction over Seller is reasonably likely to have a material adverse effectrequired for the execution, except as disclosed in delivery or performance by Seller of its obligations hereunder, including without limitation the financial statements or filings referred to in Section 4.01(l)sale of the Shares.
(nd) No transaction contemplated hereby requires compliance Neither the sale of the Shares nor the performance of Seller’s obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the certificate of incorporation, bylaws or other organizational documents of Seller; (ii) any bulk sales act decree, judgment, order, law, treaty, rule, regulation or similar lawdetermination of any court, governmental agency or body or arbitrator having jurisdiction over Seller or any of its assets or properties; or (iii) the terms of any material agreement to which Seller is a party or to which any of Seller’s properties is subject.
(oe) All financing statements necessary in order Seller has good and marketable title to perfect the Purchaser's ownership interest in Shares. The Shares are free and clear of any security interest, lien, claim or other encumbrance or any restriction on transfer, other than those imposed by the Receivables have been prepared Securities Act and filedany state securities laws (collectively, “Encumbrances”), and will be transferred to Purchaser free of any Encumbrances.
(pf) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors sale of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term Shares by Seller is used in Section 548 not part of a plan or scheme to evade the registration requirements of the United States Bankruptcy Code) and not for Securities Act. Neither Seller nor any Person acting on behalf of Seller has offered or on account of “antecedent debt”(as such term used in Section 547 sold any of the United States Bankruptcy Code) owed Shares by any means that would be deemed a “general solicitation” under the Seller to provisions of Regulation D of the PurchaserSecurities Act.
(qg) In selecting Except for the Eligible Receivables representations and warranties contained above in this Section 2, Purchaser acknowledges and agrees that none of Seller or any Affiliates of Seller nor any other Person has made or makes any other express, implied or statutory representation or warranty with respect to be Purchaser’s acquisition of the Shares, including any representations or warranties as to Seller, its business, prospects, financial condition, operations or otherwise.
(h) Seller is an executive officer of the Company and the majority shareholder and therefore all the Shares sold hereunder, hereby are deemed restricted securities as per Rule 144(a)(3) which identifies what sales produce restricted securities.
(i) Seller agrees to correct the Seller has not used any selection criteria that are materially adverse to accounting reporting error and reflect the Purchaser or its assigneesownership of the real estate assets of the Company as described in further filings with the Securities and Exchange Commissions (the “SEC”) as amended.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants to Buyer as follows:
(a) The Seller is a corporation duly organized has the necessary legal capacity, power and validly existing under authority to execute, deliver and carry out the laws terms and provisions of this Agreement and to consummate the State of Virginiatransactions contemplated hereby, and is duly qualified has taken all necessary action to do business in every jurisdiction where authorize the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, Agreement;
(ib) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly and validly authorized, executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing withdelivery by and on behalf of Buyer, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.;
(ec) Each Receivable sold hereunder is an Eligible Receivable.As of the date hereof, the Sale ADSs are fully paid and non-assessable;
(fd) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U As of the Board of Governors of the Federal Reserve System of the United States of Americadate hereof, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal owner, beneficially and beneficial owner of each such Sold Receivablerecord, of the Sale ADSs, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as Liens, and will transfer at Closing to Buyer good and valid title to the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold ReceivableSale ADSs, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as Liens;
(e) As of the result date hereof, other than the Sale ADSs, Seller is not the owner, beneficially or of record, of any action taken ADSs or not taken by Shares;
(f) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, (i) violate or conflict with any provision of the trust, charter or organizational documents or by-laws or comparable documents of Seller, and no effective financing statement result in the imposition of any Liens under, cause or permit the acceleration of any obligation under, or violate or conflict with the terms, conditions or provisions of, any note, indenture, security agreement, lease, guaranty, joint venture agreement, or other contract, agreement or instrument similar in effect covering to which Seller is a party or by which Seller or any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser Sale ADSs is bound, or result in a breach or violation by such Seller of any law, rule or regulation or any order, injunction, judgment or decree of any court, governmental authority or regulatory agency;
(g) There exists no restriction upon the sale and delivery to Buyer of the Sale ADSs by Seller, nor is Seller required to obtain the approval of any person or entity or any court, governmental authority or regulatory agency to effect the sale of such ADSs in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.terms hereof;
(h) All information and each report, exhibit, financial statement, document, book, record There are no claims for brokerage commissions or report furnished finder’s fees or to be furnished in writing at any time by the Seller to the Purchaser agent’s commissions or other like payment in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).transactions contemplated hereby; and
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually timely paid all Taxes required to be paid by it with respect to the acquisition, ownership or in the aggregate), may have a material adverse effect on the financial condition disposition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any orderSale ADSs, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of timely filed with the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.relevant
Appears in 1 contract
Sources: American Depositary Share Purchase Agreement (Metlife Inc)
Representations and Warranties of the Seller. On The Seller makes in its capacity as Seller and Servicer the Closing Date, following representations and warranties to the Purchaser as well as on each of the date hereof and the Purchase Date, the Seller represents and warrants as follows:
(a) The Seller It is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State jurisdiction of Virginia, its incorporation and is duly qualified to do business in every good standing in each jurisdiction where the nature of its business requires it failure to be so qualified, except where failure to so qualify would not be likely to qualified could materially adversely affect the Purchaser's rights its ability to perform its obligations hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunderSale Documents, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchasesthe Purchase, (i) are within the Seller's corporate powers, (ii) have been duly authorized by all necessary company corporate action, (iii) do not contravene (1i) the Seller's organizational documents, articles of incorporation or by-laws or (2ii) any law, rule law or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its propertySeller, and (iv) do not result in or require the creation of any lien, security interest or Adverse Claim (other charge or encumbrance than pursuant hereto) upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed properties; and delivered by the Sellerno transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement the Sale Documents, or any for the perfection of or the exercise by the Purchaser of its rights and remedies under the Sale Documents, except for the filing of the financing statements or other document documents referred to which it is a party to be delivered by it hereunderin Section 4.1.2 and except for compliance with Section 4.1.11.
(d) This Agreement Each Sale Document constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or threatened action or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect (i) its financial condition or operations or (ii) its ability to perform its obligations under the Sale Documents, or which could affect the legality, validity or enforceability of any Sale Document or of the interests of the Purchaser in the Purchased Assets.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of the Receivables, the Related Security and Collections, each such Sold ReceivablePurchased Receivable will be an Eligible Receivable on the Purchase Date and the Receivables and Collections are free and clear of any Adverse Claim, except as created by this Agreement; upon consummation of the Purchase, the Purchaser will acquire a valid ownership interest in the Purchased Receivables and in the Related Security and the Collections with respect thereto, and the Receivables and Collections will be free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as the result of any action taken created by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the PurchaserAgreement.
(hg) All The information to be provided by the Seller to the Servicer for use in each Servicer Report prepared under Section 5.5 and all information and each report, exhibit, financial statement, document, book, record or report Sale Documents furnished or to be furnished in writing at any time by the Seller to the Purchaser Administrative Agent in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances)date.
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(jh) The Seller is not known by treating the sale and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller assignment to the Purchaser pursuant to under this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors Agreement of the Seller. Each such Purchased Receivables, Related Security and Collections as a sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaserall purposes.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Receivables Sale Agreement (Chrysler Financial Corp)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Depositor that as of the date hereof that:
(i) The Seller is a Delaware corporation duly organized and organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the State Seller; none of Virginiathe execution and delivery of this Agreement, and is duly qualified to do business the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in every jurisdiction where a breach of, or constitute a default under, any of the nature provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect properties or the Purchaser's rights hereunder.federal stock charter or bylaws of the Seller;
(biii) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated hereby do not contravene (1) require the Seller's organizational documentsconsent or approval of, (2) the giving of notice to, the registration with, or the taking of any lawother action in respect of, rule any state, federal or regulation applicable other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and date hereof;
(iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionDepositor, delivery and performance by the Seller of this Agreement or any other document to which it is constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms, terms except as such enforceability may be subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium or bankruptcy and insolvency laws and other similar laws affecting creditor's the enforcement of the rights generally.of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(kv) There are no actions, suits or other proceedings (including matters relating pending or, to environmental liability) pending the knowledge of the Seller, threatened or threatened likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of its properties, that the transactions contemplated by this Agreement or (iB) if adversely determined (individually or with respect to any other matter which in the aggregate), may have a material adverse effect on the financial condition judgment of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or (ii) the insurance of any Eligible Receivables its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Policythis Agreement.
(lb) The balance sheets representations and warranties of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished Transferor with respect to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change Mortgage Loans contained in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is Transfer Agreement were made only as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter (whether or not such fact, condition or event would also constitute a representation or warranty of the Seller under this Agreement).
(m) There is no pending or, to the best knowledge only rights or remedies of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely Depositor with respect to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables breach by the Seller of such representation and warranty shall be first, the right to enforce the Purchaser obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor shall have the right to enforce such rights against the Seller under this Agreement with respect to such representation or warranty; provided, that in the event that the Depositor has received evidence of the issuance of a Transferor Affirmation Notice, the Depositor shall only be entitled to enforce any right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller under the Sale Agreement with respect to such representation or warranty. The representations made by the Seller pursuant to this Agreement, Sections 1.04(b)(vii) and all other transactions between the Seller and the Purchaser, have been and will 1.04(b)(viii) shall be made in good faith and without intent to hinder, delay or defraud creditors direct obligations of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 In furtherance of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderabove, the Seller has not used any selection criteria expressly acknowledges that are materially adverse prior to the Purchaser issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Depositor for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its assigneescontractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as of October 28, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Ownit Mortgage Loan Trust, Series 2005-4)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the (a) The Seller hereby represents and warrants to FAIC II as of the date of this Agreement, or as of such other date as is specifically provided, as follows:
(a1) The Seller has been duly incorporated and is a corporation duly organized and validly existing and in good standing under the laws of the State of Virginia, Colorado and is duly qualified to do business and in every good standing under the laws of each jurisdiction that requires such qualification wherein it owns or leases any material properties (except where the nature of its business requires it failure so to be so qualified, except where failure to so qualify would not be likely have a material adverse effect on the Seller). The Seller has the full power and authority (corporate and other) to materially adversely affect the Purchaser's rights hereunderown its properties and conduct its business as its business is presently conducted.
(b2) The executionSeller has the full power, delivery authority and performance by legal right to transfer and convey the Seller of Mortgage Loans to FAIC II, and has the full power, authority (corporate and other) and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, Agreement.
(3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly and validly authorized, executed and delivered by the Seller.
Seller and (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for assuming the due executionauthorization, execution and delivery and performance hereof by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(dFAIC II) This Agreement constitutes the legalvalid, valid legal and binding obligation agreement of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting creditor's creditors' rights generallygenerally and to general principles of equity, regardless of whether such enforcement is sought in a proceeding in equity or at law.
(e4) Each Receivable sold hereunder No consent, approval, authorization or order of or registration or filing with, or notice to, any governmental authority or court is an Eligible Receivablerequired for the execution, delivery and performance of or compliance by the Seller with this Agreement or the consummation by the Seller of any other transaction contemplated hereby.
(f5) No proceeds Neither the execution and delivery of any Purchase will be used, directly or indirectly this Agreement by the Seller, for nor the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables consummation by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to transactions herein contemplated, nor compliance with the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken provisions hereof by the Seller, and no effective financing statement will (A) conflict with or result in a breach of, or constitute a default under, any of the provisions of the Seller's articles of incorporation or by-laws, or any law, governmental rule or regulation, or any judgment, decree or order binding on the Seller or any of its properties, or any of the provisions of any indenture, mortgage, deed of trust, contract or other instrument similar to which the Seller is a party or by which the Seller is bound or (B) result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect covering upon any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as Seller's properties pursuant to the result terms of any action taken by such indenture, mortgage, deed of trust, contract or on behalf of the Purchaserother instrument.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j6) The Seller is not known by not, and with passage of time does not use any tradename expect to become, insolvent or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAbankrupt.
(k7) There are no actions, suits suits, proceedings or other proceedings (including matters relating investigations pending or, to environmental liability) pending or the Seller's knowledge, threatened against or affecting the SellerSeller that should reasonably be expected to affect adversely the transfer of the Mortgage Loans, the issuance of the Bonds, or any the execution, delivery, performance or enforceability of its properties, that (i) if adversely determined (individually this Agreement or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicySeller.
(l) 8) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31is, 2011and, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made immediately prior to the date sale of this Agreementthe Mortgage Loans to FAIC II, there has been the Seller will be, the sole owner of, and will have good, indefeasible and marketable title to, the Mortgage Loans, subject to no material adverse change in the businessprior lien, operationsmortgage, property or financial security interest, pledge, charge or other condition encumbrance, except any lien to be released prior to or concurrently with the purchase of the Seller (it being understood that (i) a change in Mortgage Loans by FAIC II. Following the debt ratings sale of the Mortgage Loans, FAIC II or the Issuer as FAIC II's transferee will own such Mortgage Loans, free and clear of any prior lien, mortgage, security interest, pledge, charge or other encumbrance (assuming that an Assignment of the related Mortgage from the Seller does notto FAIC II, in or its designee, is recorded), except the lien created by the Indenture.
(1) As to each Mortgage Loan, the Seller hereby represents and of itself, constitute a material adverse change and (ii) this representation is made only warrants to FAIC II as of the date of this Agreement, or as of such other date as is specifically provided, that each representation and warranty set forth in Exhibit B hereto is true and correct.
(2) The Seller has not dealt with any broker, investment banker, agent or other person that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans to FAIC II.
(3) With respect to each Mortgage Loan, the Seller is in possession of each of the Mortgage Loan Documents required to be included in the related Mortgage File (except to the extent such Mortgage File has been delivered to the Indenture Trustee as described in this Agreement).
(m4) There is no pending orThe transfer, assignment and conveyance of the Mortgage Loans by the Seller pursuant to this Agreement are not subject to the best knowledge bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(5) The Seller used no adverse selection procedures in selecting the Mortgage Loans that identified the Mortgage Loans as being less desirable or valuable than other mortgage loans in its portfolio as to which the representations and warranties required by this Agreement could truthfully be made. The Mortgage Loans are representative of the Seller, threatened action or proceeding affecting the Seller or any 's portfolio of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l)adjustable-rate residential mortgage loans.
(n6) No transaction contemplated hereby requires compliance with The description of those Mortgage Loans set forth in the Prospectus Supplement under the heading "Description of the Mortgage Pool" does not contain any bulk sales act untrue statement of any material fact or similar law.
(o) All financing statements omit any material fact required to be stated therein or necessary in order to perfect make the Purchaser's ownership interest statements contained therein, in light of the Receivables have been prepared and filedcircumstances under which they are made, not misleading.
(p7) The sales information set forth in the Mortgage Loan Schedule hereto is true and correct in all material respects in the case of Receivables each Mortgage Loan, as of its respective Cut-off Date.
(8) The consideration received by the Seller to upon the Purchaser pursuant to sale of the Mortgage Loans under this AgreementAgreement constitutes fair consideration and reasonably equivalent value for the Mortgage Loans.
(9) The Seller is solvent, and all other transactions between the sale of the Mortgage Loans as contemplated hereby will not cause the Seller and to become insolvent. The sale of the Purchaser, have been and will be made in good faith and without Mortgage Loans is not undertaken with the intent to hinder, delay or defraud creditors any of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser's creditors.
(q10) In selecting The Seller intends to relinquish all rights to possess, control and monitor the Eligible Receivables Mortgage Loans sold pursuant to be this Agreement (except such rights as are entailed in its serving as the Servicer of the Mortgage Loans under the Servicing Agreement). After the Closing Date, the Seller will have no right to modify or alter the terms of the sale of the Mortgage Loans (except such rights as are entailed in its serving as the Servicer of the Mortgage Loans under the Servicing Agreement), and the Seller will have no right or obligation to repurchase any Mortgage Loan or substitute another mortgage loan for any Mortgage Loan sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assigneesexcept as provided in Sections 3 and 7 hereof.
Appears in 1 contract
Sources: Mortgage Loan Sale Agreement (Fund America Investors Corp Ii)
Representations and Warranties of the Seller. On The Seller represents and warrants, as of the date hereof and as of the Closing Date, as well as on each Purchase Date, the Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and validly existing under has the laws of the State of Virginia, and is duly qualified capacity to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of enter into this Agreement and the other documents to be delivered by it hereundersell, including the Seller's sale of Receivables hereunder assign, transfer and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable deliver to the SellerPurchaser, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to the terms and conditions of this Agreement), the Shares. This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation agreement of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's relating to creditors' rights generallygenerally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought.
(eb) Each Receivable sold hereunder is an Eligible ReceivableExcept for this Agreement and the MBO Agreement, there are no outstanding options, warrants or rights to purchase or acquire, or agreements (whether voting or otherwise) relating to, the Shares.
(fc) No proceeds of any Purchase will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, The Seller has good and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables marketable title to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold ReceivableShares, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result all liens, claims, security interests and encumbrances of any action taken by or on behalf of the Purchaser)nature. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time Upon delivery hereunder by the Seller to the Purchaser in connection with this Agreement is or of the certificates evidencing the Shares and upon payment by the Purchaser to the Seller of the Purchase Price therefor, the Purchaser will be accurate in acquire good and marketable to the Shares, free and clear of all material respects as liens, claims, security interests and encumbrances of its date or any nature (except as otherwise disclosed to those created by the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstancesPurchaser).
(id) The principal place of business and chief executive office sale of the Seller and Shares hereunder will not, with or without the office where giving of notice or the lapse of time, or both, (a) to the Seller's knowledge, violate any provision of law, statute, rule or regulation to which the Seller keeps its records is subject, (b) violate any order, judgment or has access decree applicable to such records concerning the Sold Receivables are located at Seller, or (c) after receiving the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place consent of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇to the sale of the Shares, Trans-Continental Leaf Tobacco Corporation Ltdconflict with, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG)or result in a breach or default under, W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAany term or condition of any agreement or other instrument to which the Seller is a party or by which it is bound.
(ke) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011acquired, and fully paid for, the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as Shares at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made least two years prior to the date of this Agreement, there has been no material adverse change in .
(f) The Seller is not an affiliate (within the business, operations, property or financial or other condition meaning of Rule 144 under the Act (as defined below)) of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in Company and of itself, constitute a material adverse change and (ii) this representation is made only as of has not been such an affiliate for at least three months prior to the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser that the statements contained in this Section 4, with respect to such Seller, are correct and complete as follows:of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 5).
(a) The Seller has the power and authority to execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver to the Purchaser the Seller Shares as contemplated hereby. No permit, consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is a corporation duly organized required in connection with the execution and validly existing under the laws of the State of Virginia, and is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds transactions contemplated hereby.
(b) Neither the execution and delivery of Purchasesthis Agreement, (i) are within nor the Seller's powersconsummation of the transactions contemplated hereby or compliance with the terms and conditions hereof by the Seller will violate or result in a breach of any term or provision of any agreement to which any Seller is bound or is a party, (ii) have been duly authorized by all necessary company actionor be in conflict with or constitute a default under, (iii) do not contravene (1) or cause the Seller's organizational documentsacceleration of the maturity of any obligation of the Seller under any existing agreement or violate any order, (2) any lawwrit, injunction, decree, statute, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property any properties or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation assets of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action byThis Agreement has been duly and validly executed by the Seller, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or other similar laws affecting creditor's creditors' rights generallygenerally or by limitations, on the availability of equitable remedies.
(d) The Seller shall indemnify, defend and hold harmless Purchaser from and against all liabilities incurred by Purchaser, directly or indirectly, including without limitation, all reasonable attorney’s fees and court costs, arising out of or in connection with the execution of this agreement set forth in this Agreement, except where fraud, intent to defraud or default of payment evolves on the part of Purchaser.
(e) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds The Seller owns the Seller Shares free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Purchase will be usedkind (collectively, directly or indirectly by the Seller“Liens”), for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U and upon delivery of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables Shares to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall will acquire good, valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect marketable title thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated herebyLiens. The Seller is not in default of a party to any contractual obligation or in violation of any orderoption, rule or regulation of any governmental authoritywarrant, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31purchase right, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood contract or commitment that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by could require the Seller to sell, transfer, or otherwise dispose of any capital stock of the Purchaser Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, and all proxy, or other transactions between agreement or understanding with respect to the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors voting of any capital stock of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the PurchaserCompany.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized and incorporated, validly existing and in good standing under the laws of the State of VirginiaDelaware, and is duly qualified to do business and is in good standing as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to be so qualify qualified would not be likely to materially adversely affect the Purchaser's rights hereunderhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of this the Agreement and the other documents Transaction Documents to be delivered by which it hereunderis a party, including the Seller's sale of Receivables hereunder and the Seller's its use of the proceeds of Purchases, purchases and reinvestments: (i) are within the Seller's its corporate powers, ; (ii) have been duly authorized by all necessary company corporate action, ; (iii) do not contravene or result in a default under or conflict with: (1A) the Seller's organizational documentsits charter or by-laws, (2B) any law, rule or regulation applicable to the Sellerit, (3C) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on indenture, loan agreement, mortgage, deed of trust or affecting the Seller other material agreement or its property instrument to which it is a party or by which it is bound, or (4D) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller it or any of its property, ; and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance Adverse Claim upon or with respect to any of its properties (except for properties. The Agreement and the transfer of the Seller's interest in the Sold Receivables pursuant other Transaction Documents to this Agreement). This Agreement has which it is a party have been duly executed and delivered by the Seller.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required to be obtained, taken, given or made by the Seller for the its due execution, delivery and performance by the Seller of this the Agreement or any other document Transaction Document to which it is a party party, other than the Uniform Commercial Code filings referred to be delivered by it in Exhibit II to the Agreement, all of which shall have been filed on or before the date of the first purchase hereunder.
(d) This Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws from time to time in effect affecting creditor's the enforcement of creditors’ rights generallygenerally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Each Receivable sold hereunder There is an Eligible Receivableno pending or, to Seller’s best knowledge, threatened action or proceeding affecting Seller or any of its properties before any Governmental Authority or arbitrator.
(f) No proceeds of any Purchase purchase or reinvestment will be used, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, used to acquire any equity security of buying or carrying any “margin stock” within the meaning of Regulation U a class that is registered pursuant to Section 12 of the Board Securities Exchange Act of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof1934.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivablethe Pool Receivables and Related Security, free and clear of any Adverse Claim Claim. Upon each purchase or reinvestment, Administrator (other than any Adverse Claim arising solely as for the result benefit of any action taken by each Purchaser) shall acquire a valid and enforceable perfected undivided percentage ownership or on behalf security interest, to the extent of the Purchaser). When Purchased Interest, in each Pool Receivable then existing or thereafter arising and in the Purchaser makes a Purchase it shall acquire valid Related Security, Collections and perfected first priority ownership of each Sold Receivable, Related Security and the Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim arising as Claim. The Agreement creates a security interest in favor of the result Administrator (for the benefit of each Purchaser) in the Pool Assets, and the Administrator (for the benefit of each Purchaser) has a first priority perfected security interest in the Pool Assets, free and clear of any action taken or not taken by the Seller, and no Adverse Claims. No effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto Pool Asset is on file in any recording office office, except such as may be those filed in favor of the Purchaser in accordance with this Seller pursuant to the Sale Agreement and the Administrator (for the benefit of each Purchaser) relating to the Agreement, or in connection with any Adverse Claim arising solely respect of which the Administrator has received evidence satisfactory to the Administrator of acknowledgment copies, or time-stamped receipt copies, of proper financing statements releasing or terminating, as the result applicable, all security interests and other rights of any action taken by or on behalf of the PurchaserPerson in such Pool Asset.
(h) All Each Information Package (if prepared by the Seller or one of its Affiliates, or to the extent that information and each reportcontained therein is supplied by the Seller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by or on behalf of the Seller to the Administrator or any Purchaser Agent in connection with this the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (furnished, and does not and will not contain any material misstatement of fact or omit to state a material fact or any information fact necessary to make the information statements contained therein not misleading under the circumstances)misleading.
(i) The principal place of business Seller has filed all tax returns and chief executive office of the Seller reports required by law to have been filed by it and the office where the Seller keeps has paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 monthsbooks.
(j) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the Administrator in accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements (except as otherwise agreed to in writing by the Administrator and each Purchaser Agent or as provided in Section 4.3). Seller has not granted to any Person, other than the Administrator as contemplated by the Agreement, dominion and control of any Lock-Box Account, or the right to take dominion and control of any such account at a future time or upon the occurrence of a future event.
(k) The Seller is not known in violation of any order of any court, arbitrator or Governmental Authority.
(l) Neither the Seller nor any of its Affiliates has any direct or indirect ownership or other financial interest in any Purchaser.
(m) No proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, rule or regulation, including Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing that constitutes a Termination Event or an Unmatured Termination Event and no event would result from a purchase in respect of, or reinvestment in respect of, the Purchased Interest or from the application of the proceeds therefrom that constitutes a Termination Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided percentage ownership interests in Receivables in its books and financial statements as sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the Credit and Collection Policy of each Originator with regard to the Receivables originated by such Originator, unless such Receivables were not Eligible Receivables as of the date of the sale or conveyance of such Receivables by such Originator to the Seller under the Sale Agreement and the aggregate Outstanding Balance of all such Receivables does not exceed $1,000,000.
(r) The Seller has complied in all material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it and all laws, rules, regulations and orders that are applicable to it.
(s) The Seller’s complete corporate name is set forth in the preamble to the Agreement, and it does not use and has not during the last six years used any tradename or other corporate name, trade name, doing-business-as business name or fictitious name, except as set forth on Schedule III to the Agreement and except for Dimon International AGnames first used after the date of the Agreement and set forth in a notice delivered to the Administrator pursuant to Section 1(k)(iv) of Exhibit IV to the Agreement.
(t) The Seller (i) is not, Intabex SAand is not controlled by, ▇▇▇an “investment company” registered or required to be registered under the Investment Company Act and (ii) is not a “covered fund” under the ▇▇▇▇▇▇▇ Rule. In determining that the Seller is not a “covered fund” under the ▇▇▇▇▇▇▇▇ Rule, Trans-Continental Leaf Tobacco Corporation Ltdthe Seller relies on, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG)and is entitled to rely on, W.A. ▇▇▇▇▇ the exemption from the definition of “investment company” set forth in Section 3(c)(5) of the Investment Company and Trans-Continental Leaf Tobacco Corporation SAAct.
(ku) There are no actionsWith respect to each Receivable transferred to the Seller under the Sale Agreement, suits Seller has given reasonably equivalent value to the Originator thereof in consideration therefor and such transfer was not made for or other proceedings (including matters relating to environmental liability) pending on account of an antecedent debt. No transfer by any Originator of any Receivable under the Sale Agreement is or threatened against or affecting the Seller, or may be voidable under any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition section of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the PolicyBankruptcy Code.
(lv) The balance sheets Each Contract with respect to each Receivable is effective to create, and has created, a legal, valid and binding obligation of the Seller and its consolidated Subsidiaries as at December 31, 2011, and related Obligor to pay the related statements of income and retained earnings Outstanding Balance of the Seller Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its consolidated Subsidiaries terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of and for the equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(w) Since its most recent fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreementend, there has been no material adverse change in the business, operations, property financial condition, properties or financial or other condition assets of the Seller which would have a Material Adverse Effect on its ability to perform its obligations under the Agreement or any other Transaction Document to which it is a party or materially and adversely affect the transactions contemplated under the Agreement or such other Transaction Documents.
(it being understood that x) Neither Seller nor any of its directors, officers, employees, agent or Affiliates (i) a change in the debt ratings is an “enemy” or an “ally of the Seller does not, in and enemy” within the meaning of itself, constitute a material adverse change and (ii) this representation is made only as Section 2 of the date of this Agreement).
(m) There is no pending or, to Trading with the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 Enemy Act of the United States Bankruptcy Code(50 U.S.C. App. §§ 1 et seq.), (ii) and not for or on account is in violation of “antecedent debt”(as such term used in Section 547 (A) any of the United States Bankruptcy Code) owed laws, regulations and executive orders administered by the Seller U.S. Department of Treasury’s Office of Foreign Assets Control, including the International Emergency Economic Powers Act (50 U.S.C. §§ 1701-1705), the Trading with the Enemy Act (50 U.S.C. App. §§ 1-44), and the Office of Foreign Assets Control, Department of the Treasury regulations (31 C.F.R. Parts 500 et seq.), or (B) the Patriot Act (collectively, the “Anti-Terrorism Laws”) or (iii) is a Sanctioned Person. No part of the proceeds of any Purchase will be unlawfully used directly or, to the Purchaserits knowledge, indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation by it or, to its knowledge, by any other Person (including any Affected Person) of any Anti-Terrorism Laws.
(qy) In selecting the Eligible Receivables to be sold hereunder, the The Seller has not used issued any selection criteria that are materially adverse to LCR Securities, and the Purchaser or its assigneesSeller is a consolidated subsidiary of Worthington under GAAP.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Worthington Industries Inc)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser, as followsof the Closing Date or, as applicable, as of each Subsequent Transfer Date (or if otherwise specified below, as of the date so specified):
(a) As to the Seller:
(ai) The Seller is a corporation national banking association duly organized and validly existing under the laws of the State United States of Virginia, America and is duly qualified in compliance with the laws of each state in which any Mortgaged Property is located to do business in every jurisdiction where the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.each Mortgage Loan;
(bii) The executionSeller has the power and authority to make, delivery execute, deliver and performance by the Seller of perform its obligations under this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This each Subsequent Transfer Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party and all of the transactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to be delivered by it hereunder.authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(diii) The Seller is not required to obtain the consent of any other Person or any consents, licenses, approvals or authorizations from, or registrations or declarations with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement or each such Subsequent Transfer Agreement, except for such consents, licenses, approvals or authorizations, or registrations or declarations, as shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer Agreement to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and each such Subsequent Transfer Agreement will not violate the Seller's Articles of Association or Bylaws or constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the material breach of, any material contract, agreement or other instrument to which the Seller is a party or which may be applicable to the Seller or any of its assets;
(v) There are no pending or, to the best of the Seller's knowledge, threatened, actions, suits, proceedings or investigations before any court, tribunal, administrative agency, arbitrator or governmental body that, if decided adversely, would materially and adversely affect (A) the condition (financial or otherwise), business or operations of the Seller, (B) the ability of the Seller to perform its obligations under, or the validity or enforceability of, the Basic Documents to which it is a party or (C) the transactions contemplated by this Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to which it is a party constitutes the a legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, subject to except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other similar laws affecting creditor's the enforcement of creditors' rights generally.in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), and by public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws;
(evii) Each Receivable sold hereunder is an Eligible Receivable.
(f) No proceeds This Agreement constitutes a valid transfer and assignment to the Purchaser of any Purchase will be usedall right, directly or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U title and interest of the Board of Governors of Seller in and to the Federal Reserve System of Initial Mortgage Loans, including the United States of AmericaCut-Off Date Principal Balances now existing and all Additional Balances thereafter arising to and including the day immediately preceding the Rapid Amortization Period, as the same is from time all monies due or to time in effectbecome due with respect thereto, and all official rulings proceeds of such Cut-Off Date Principal Balances with respect to the Initial Mortgage Loans; and interpretations thereunder or thereof.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement and the related Subsequent Transfer Agreement, when executed and delivered, will constitute a valid saletransfer and assignment to the Purchaser of all right, transfertitle and interest of the Seller in and to the Subsequent Mortgage Loans, including the Cut-Off Date Principal Balances of the Subsequent Mortgage Loans, all monies due or to become due with respect thereto, and assignment all proceeds of the Sold Receivables to the Purchaser, enforceable against creditors of, such Cut-Off Date Principal Balances and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time nothing has been done by the Seller to impair the Purchaser in connection with this Agreement is or will be accurate in all material respects as rights of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunderTrustee, the Seller has not used any selection criteria that are materially adverse to Paying Agent, the Purchaser Enhancer or its assignees.the Securityholders with respect thereto; and
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Mortgage Loan Trust, LLC)
Representations and Warranties of the Seller. On the Closing DateSeller represents, as well as on each Purchase Date, the Seller represents and warrants to Purchaser as follows:
(a) The Seller is a corporation duly organized and limited liability company organized, validly existing and in good standing under the laws of the State of VirginiaDelaware and, and is duly qualified if required, authorized to do transact business in every jurisdiction where the nature Commonwealth of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.Kentucky;
(b) This Agreement and all instruments required hereby to be executed and delivered to Purchaser by Seller are, or when delivered will be, the legal, valid and binding obligations of such Seller;
(c) Seller has full power and authority to execute and deliver this Agreement and all related documents and to carry out the transactions contemplated herein, and this Agreement and all instruments and documents delivered pursuant hereto at the Closing shall be valid and binding documents enforceable against such Seller in accordance with their respective terms;
(d) The execution, delivery and performance by the Seller execution of this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use consummation of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) transactions contemplated herein do not contravene (1) the Seller's organizational documentsconflict with or violate any provision of any agreement, (2) any lawinstrument, rule law or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on which Seller is a party or affecting the by which Seller or its Seller’s property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Seller.is bound;
(ce) No authorization or other approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller authorization of this Agreement or any other document to which it is a party agreements to be delivered entered into in connection with the transactions contemplated hereby are required by it hereunder.
(d) This law or otherwise in order to make this Agreement constitutes or any other agreements entered into in connection with the legal, valid and transactions contemplated herein binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights generally.
(e) Each Receivable sold hereunder is an Eligible Receivable.upon Seller;
(f) No proceeds To the best of Seller’s knowledge, Seller is the owner of and has insurable title to the Property, subject only to the Permitted Exceptions;
(g) To the best of Seller’s knowledge, there are no judgments existing, nor suits, actions or proceedings pending or threatened in any Purchase will be used, directly court which have any material impact against Seller or indirectly by the Seller, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any Property; and
(h) Seller is not a “margin stockforeign person” within the meaning of Regulation U Section 1445 of the Board of Governors of Internal Revenue Code and the Federal Reserve System of the United States of America, as the same is from time to time Regulations promulgated in effectconnection therewith, and all official rulings and interpretations thereunder or thereofis, therefore, exempt from withholding requirements of said Section.
(g) Sales of Sold Receivables by the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
(i) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.
(k) There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) There is no pending or, to the best knowledge of the Seller, threatened action or proceeding affecting the Seller or any of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements or filings referred to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(o) All financing statements necessary in order to perfect the Purchaser's ownership interest in the Receivables have been prepared and filed.
(p) The sales of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller. Each such sale has been made for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the Purchaser.
(q) In selecting the Eligible Receivables to be sold hereunder, the Seller has not used any selection criteria that are materially adverse to the Purchaser or its assignees.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Old National Bancorp /In/)
Representations and Warranties of the Seller. On the Closing Date, as well as on each Purchase Date, the The Seller represents and warrants to the Purchaser, as followsof the Closing Date or, as applicable, as of each Subsequent Transfer Date (or if otherwise specified below, as of the date so specified):
(a) As to the Seller:
(ai) The Seller is a corporation national banking association duly organized and validly existing under the laws of the State United States of Virginia, America and is duly qualified in compliance with the laws of each state in which any Mortgaged Property is located to do business in every jurisdiction where the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, except where failure to so qualify would not be likely to materially adversely affect the Purchaser's rights hereunder.each Mortgage Loan;
(bii) The executionSeller has the power and authority to make, delivery execute, deliver and performance by the Seller of perform its obligations under this Agreement and the other documents to be delivered by it hereunder, including the Seller's sale of Receivables hereunder and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene (1) the Seller's organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This each Subsequent Transfer Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made by the Seller for the due execution, delivery and performance by the Seller of this Agreement or any other document to which it is a party and all of the transactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to be delivered by it hereunder.authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(diii) The Seller is not required to obtain the consent of any other Person or any consents, licenses, approvals or authorizations from, or registrations or declarations with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement or each such Subsequent Transfer Agreement, except for such consents, licenses, approvals or authorizations, or registrations or declarations, as shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer Agreement to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and each such Subsequent Transfer Agreement will not violate the Seller's Articles of Association or Bylaws or constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the material breach of, any material contract, agreement or other instrument to which the Seller is a party or which may be applicable to the Seller or any of its assets;
(v) There are no pending or, to the best of the Seller's knowledge, threatened, actions, suits, proceedings or investigations before any court, tribunal, administrative agency, arbitrator or governmental body that, if decided adversely, would materially and adversely affect (A) the condition (financial or otherwise), business or operations of the Seller, (B) the ability of the Seller to perform its obligations under, or the validity or enforceability of, the Basic Documents to which it is a party or (C) the transactions contemplated by this Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to which it is a party constitutes the a legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), and by public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the Purchaser of all right, title and interest of the Seller in and to the Initial Mortgage Loans, including the Cut-Off Date Principal Balances now existing and all Additional Balances thereafter arising to and including the day immediately preceding the Rapid Amortization Period, all monies due or to become due with respect thereto, and all proceeds of such Cut-Off Date Principal Balances with respect to the Initial Mortgage Loans; and this Agreement and the related Subsequent Transfer Agreement, when executed and delivered, will constitute a valid transfer and assignment to the Purchaser of all right, title and interest of the Seller in and to the Subsequent Mortgage Loans, including the Cut-Off Date Principal Balances of the Subsequent Mortgage Loans, all monies due or to become due with respect thereto, and all proceeds of such Cut-Off Date Principal Balances and nothing has been done by the Seller to impair the rights of the Purchaser, the Trustee, the Paying Agent, the Enhancer or the Securityholders with respect thereto; and
(viii) 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 governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially adversely affect its performance hereunder.
(b) As to each Initial Mortgage Loan (except as otherwise specified below) as of the Closing Date, or as to each Subsequent Mortgage Loan (except as otherwise specified below) as of the related Subsequent Transfer Date:
(i) The information pertaining to each Mortgage Loan set forth in the Mortgage Loan Schedule delivered by the Seller was true and correct in all material respects as of the date or dates respecting which such information is initially furnished;
(ii) Each Mortgaged Property is improved by a residential dwelling, which, to the best of the Seller's knowledge, does not constitute property other than real property under state law;
(iii) Each Mortgage Loan is being serviced by the Seller and there was only one originally executed Loan Agreement not stamped as a duplicate copy with respect to each such Mortgage Loan;
(iv) The Loan Agreement with respect to each Mortgage Loan bears an adjustable Loan Rate;
(v) Immediately prior to the transfer and assignment herein contemplated or under the related Subsequent Transfer Agreement, as applicable, the Seller held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Seller subject to no liens (other than, with respect to any Mortgage Loan in a (A) second lien position, the lien of the related first mortgage and (B) third lien position, the lien of the related first mortgage and the related second mortgage), charges, mortgages, encumbrances or rights of others or other liens which will not be released simultaneously with such transfer and assignment and has full right and authority, under all governmental and regulatory bodies having jurisdiction over the ownership of the applicable Mortgage Loans to sell and assign the same pursuant to this Agreement or the related Subsequent Transfer Agreement, as applicable;
(vi) To the best of the Seller's knowledge, there is no delinquent recording or other tax or fee or assessment lien on any Mortgaged Property, and each Mortgaged Property is free of material damage and is in good repair;
(vii) No Mortgage Loan is subject to any right of rescission, valid set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Loan Agreement or the Mortgage relating to any Mortgage Loan, or the exercise of any right thereunder, render either such Loan Agreement or such Mortgage unenforceable in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(viii) To the best of the Seller's knowledge, each Mortgage Loan at the time it was made and the related Loan Agreement complied in all material respects with applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure, recording and all applicable anti-predatory lending laws;
(ix) A policy of hazard insurance and flood insurance, if applicable, was required from the Mortgagor for the Mortgage Loan when the Mortgage Loan was originated;
(x) Each Mortgage Loan and each Loan Agreement is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's the enforcement of creditors' rights generally.generally and by general principles of equity (whether considered in a proceeding or action in equity or at law);
(exi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994. Furthermore, no Mortgage Loan either currently has, or in the future will have, single premium life provisions as part of the Loan Agreement;
(xii) Each Receivable sold hereunder is Initial Mortgage Loan has an Eligible Receivable.associated CLTV of no higher than 100%;
(fxiii) No proceeds of any Purchase will be used, directly There is no proceeding pending or indirectly by the Seller, threatened for the purpose, whether immediate, incidental total or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U partial condemnation of the Board of Governors Mortgaged Property, nor is such a proceeding currently occurring;
(xiv) The related Loan Agreement is not and has not been secured by any collateral, pledged account or other security except the lien of the Federal Reserve System corresponding Mortgage;
(xv) With respect to each Initial Mortgage Loan and Subsequent Mortgage Loan, as applicable, the related Mortgage File contains or will contain each of the United States of America, as the same is from time documents and instruments specified to time in effect, and all official rulings and interpretations thereunder or thereof.be included therein;
(gxvi) Sales of Sold Receivables by the Seller pursuant With respect to this Agreement will constitute each Mortgage Loan that is not a valid salefirst mortgage loan, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser.
(h) All information and each report, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (and does not omit any information necessary to make the information contained therein not misleading under the circumstances).
either (i) The principal place of business and chief executive office no consent for the Mortgage Loan is required by the holder or holders of the Seller related prior lien, (ii) such consent has been obtained and is contained in the office where related Mortgage File or (iii) no consent for the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.Mortgage Loan was required by relevant law;
(jxvii) The Seller Mortgaged Property is not known by located in the state identified in the Mortgage Loan Schedule and does not use any tradename or doing-business-as name, except for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SA.consists of a single parcel of real property with a residential dwelling erected thereon;
(kxviii) There are no actionsThe related Mortgage contains customary and enforceable (subject to clause (x)) provisions which render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Sellerincluding, or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability case of a material portion Mortgage designated as a deed of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any ordertrust, rule or regulation of any governmental authorityby trustee's sale, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policy.
(l) The balance sheets of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings of the Seller and its consolidated Subsidiaries as of and for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Seller and its consolidated Subsidiaries as at such date and the results of the operations of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there has been no material adverse change in the business, operations, property or financial or other condition of the Seller (it being understood that (i) a change in the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement).
(m) otherwise by judicial foreclosure. There is no pending or, homestead or other exemption available to the Mortgagor which would materially interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage;
(xix) To the best knowledge of the Seller's knowledge, threatened action there is no default, breach, violation or proceeding event of acceleration existing under the Mortgage or the related Loan Agreement and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(xx) At origination, each Initial Mortgage Loan has a draw period of not less than 36 months;
(xxi) The Loan Agreement with respect to each Initial Mortgage Loan bears an adjustable Loan Rate with an index plus a margin that equals a rate per annum of no less than Prime minus ____%;
(xxii) To the best of the Seller's knowledge, there are no mechanics' or similar liens or claims which have been filed for work, labor or material affecting the Seller related Mortgaged Property which are, or any may be liens prior or equal to the lien of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effectthe related Mortgage, except as disclosed in the financial statements or filings liens which are fully insured against by a title insurance policy referred to in Section 4.01(l).clause (xxiv) below;
(nxxiii) No transaction contemplated hereby requires compliance with any bulk sales act As of the Cut-Off Date or similar law.the related Subsequent Cut-Off Date, as applicable, no Mortgage Loan was 30 days or more delinquent in payment of principal or interest or the subject of a bankruptcy proceeding;
(oxxiv) All financing statements A title search or other assurance of title customary in the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each original Mortgage was recorded, and all subsequent assignments of the original Mortgage required to be delivered to the Servicer pursuant to Section 2.1 have been recorded in the appropriate jurisdictions wherein such recordation is necessary in order to perfect the Purchaser's ownership interest lien thereof (or are in the Receivables have been prepared and filed.process of being recorded in accordance with local law);
(pxxvi) The sales of Receivables by Seller has not transferred the Seller Mortgage Loans to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without with any intent to hinder, delay or defraud creditors any of its creditors;
(xxvii) No selection procedure reasonably believed by the Seller to be adverse to the interests of the Securityholders was utilized in selecting the Mortgage Loans;
(xxviii) The Minimum Monthly Payment with respect to any Mortgage Loan is not less than the interest accrued at the applicable Loan Rate on the average daily Principal Balance during the interest period relating to the date on which such Minimum Monthly Payment is due;
(xxix) The Seller has not received a notice of default of any senior mortgage loan related to a Mortgaged Property which has not been cured by a party other than the Seller. Each such sale ;
(xxx) No instrument of release or waiver has been made for “reasonably equivalent value” executed in connection with the Mortgage Loans, and no Mortgagor has been released, in whole or in part, from its obligations in connection therewith;
(xxxi) Each Mortgage Loan has been originated by the Seller in compliance in all material respects with the Seller's internal underwriting policies as in effect on the date of origination of such Mortgage Loan;
(xxxii) Other than provisions relating to "promotional Finance Charges" and "promotional advances," as each such term is used in the related Loan Agreements, or any similar terms used in any of the related Loan Agreements, there are no provisions in any of the related Loan Agreements that would interfere with the allocation provisions of the second sentence of Section 2.4;
(xxxiii) No "promotional advances," as such term is used in Section 548 the related Loan Agreements or any other similar type of advance that would be entitled to an allocation of payment other than by application in chronological order (except with respect to Liquidation Loss Amounts and Subsequent Recovery Amounts) will be extended under any Mortgage Loan after the date on which the Rapid Amortization Period commences;
(xxxiv) None of the United States Bankruptcy CodeLoan Agreements that constitute or evidence the Mortgage Loans has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Purchaser;
(xxxv) No Mortgage Loan is a "high cost loan" or "covered loan" as applicable (as such terms are defined in Standard & Poor's LEVELS® Glossary, Version 5.6 Revised, Appendix E, attached hereto as Exhibit 6) and not for no Mortgage Loan originated on or on account of “antecedent debt”(as such term used in Section 547 after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act";
(xxxvi) Reserved;
(xxxvii) As of the United States Bankruptcy Code) owed by Cut-Off Date, the Seller to minimum CLTV of a Mortgage Loan is ___%, the Purchaser.highest CLTV of a Mortgage Loan is ___% and the weighted average CLTV for the Mortgage Loans is approximately ___%;
(qxxxviii) In selecting As of the Eligible Receivables to be sold hereunderCut-Off Date, no more than approximately ___% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties which may have been appraised using a statistical property evaluation method provided by CASA®;
(xxxix) As of the Cut-Off Date, no more than approximately ___% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties which may have been appraised using a statistical property evaluation method provided by vendors other than CASA;
(xl) As of the Cut-Off Date, the Seller has not used any selection criteria that Loan Rates on the Mortgage Loans range between ___% per annum and ___% per annum. As of the Cut-Off Date, the weighted average Loan Rate for the Mortgage Loans is approximately ___% per annum;
(xli) As of the Cut-Off Date, no more than approximately ___%, ___%, ___%, ___% and ___% of the Mortgage Loans, by Cut-Off Date Principal Balance, are materially adverse to secured by Mortgaged Properties located in the Purchaser states of _______, _______, _______, _______ and _______, respectively;
(A) Each Mortgaged Property consists of a single parcel of real property with a single family or its assignees.multi-family residence erected thereon, or an individual condominium unit or agricultu
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Asset Funding Trust, LLC)
Representations and Warranties of the Seller. On The Seller hereby represents, warrants and covenants to the Closing Date, as well as on each Purchase DateTrustee, the Seller represents Oversight Agent, the Certificate Insurer and warrants to the Owners as followsof the Startup Day that:
(a) The Seller is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of Virginia, California and is duly qualified to do business in every good standing as a foreign corporation in each jurisdiction where in which the nature of its business, or the properties owned or leased by it, make such qualification necessary. The Seller has all requisite corporate power and authority to own and operate its properties, to carry out its business requires it as presently conducted and as proposed to be so qualified, except where failure conducted and to so qualify would not be likely enter into and discharge its obligations under this Agreement and the other Operative Documents to materially adversely affect the Purchaser's rights hereunderwhich it is a party.
(b) The execution, execution and delivery and performance by the Seller of this Agreement and the other documents Operative Documents to be delivered which it is a party by it hereunder, including the Seller's sale Seller and its performance and compliance with the terms of Receivables hereunder this Agreement and the Seller's use of the proceeds of Purchases, (i) are within the Seller's powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary company action, (iii) do corporate action on the part of the Seller and will not contravene (1) violate the Seller's organizational documentsArticles of Incorporation or Bylaws or constitute a default (or an event which, (2with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any lawmaterial contract, agreement or other instrument to which the Seller is a party or by which the Seller is bound, or violate any statute or any order, rule or regulation applicable to the Sellerof any court, (3) any contractual restriction (except as otherwise provided in Section 5.01(j)(i)(B)) binding on governmental agency or affecting body or other tribunal having jurisdiction over the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller's interest in the Sold Receivables pursuant to this Agreement). This Agreement has been duly executed and delivered by the Sellerproperties.
(c) No authorization or approval or This Agreement and the other action byOperative Documents to which the Seller is a party, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required to be obtained, taken, given or made delivery by the Seller for the due executionother parties hereto and thereto, delivery and performance by the Seller of this Agreement or any other document to which it is each constitutes a party to be delivered by it hereunder.
(d) This Agreement constitutes the legalvalid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its termsthe terms hereof and thereof, subject to except as the enforcement hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's creditors' rights generallygenerally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) 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 governmental agency, which might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder or under the other Operative Documents to which it is a party.
(e) Each Receivable sold Except as noted in the Prospectus Supplement under the caption "RISK FACTORS -- Litigation," no action, suit, proceeding or investigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which, individually or in the aggregate, might have consequences that would prohibit the Seller from entering into this Agreement or any other Operative Document to which it is a party or that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect the validity or enforceability of Mortgage Loans or the Seller's performance hereunder or under the other Operative Documents to which it is an Eligible Receivablea party.
(f) No proceeds certificate of any Purchase will be usedan officer, directly statement furnished in writing or indirectly report delivered pursuant to the terms hereof by the SellerSeller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, for the purpose, whether immediate, incidental statement or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereofreport not misleading.
(g) Sales of Sold Receivables by The statements contained in the Registration Statement which describe the Seller pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Sold Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Sold Receivable, Related Security or Collections. Immediately prior to the sale of each Sold Receivable hereunder, matters or activities for which the Seller is the legal and beneficial owner of each such Sold Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by or on behalf of the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Sold Receivable, Related Security and the Collections with respect thereto free and clear of any Adverse Claim arising as the result of any action taken or not taken by the Seller, and no effective financing statement or other instrument similar in effect covering any Sold Receivable, any interest therein, the Related Security or the Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Purchaser responsible in accordance with this Agreement the Operative Documents or which are attributed to the Seller therein are true and correct in connection all material respects, and the Registration Statement does not contain any untrue statement of a material fact with any Adverse Claim arising solely as respect to the result of any action taken by Seller or on behalf omit to state a material fact required to be stated therein or necessary in order to make the statements contained therein with respect to the Seller not misleading. With respect to matters other than those referred to in the immediately preceding sentence, to the best of the PurchaserSeller's knowledge and belief, the Registration Statement does not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact required to be stated therein or necessary to make the statements contained therein not misleading.
(h) All information actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and each report, exhibit, financial statement, document, book, record or report furnished or licenses required to be furnished taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in writing at any time connection with the purchase and sale of the Certificates and the execution and delivery by the Seller of the Operative Documents to which it is a party, have been duly taken, given or obtained, as the Purchaser case may be, are in connection with full force and effect on the Startup Day and, except as noted in the Prospectus Supplement under the caption "RISK FACTORS -- Litigation," 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 is or will be accurate in all material respects as and the other Operative Documents on the part of the Seller and the performance by the Seller of its date or (except as otherwise disclosed to the Purchaser at obligations under this Agreement and such time) as of the date so furnished (and does not omit any information necessary other Operative Documents to make the information contained therein not misleading under the circumstances)which it is a party.
(i) The principal place transactions contemplated by this Agreement are in the ordinary course of business and chief executive office of the Seller and the office where the Seller keeps its records or has access to such records concerning the Sold Receivables are located at the addresses referred to in Section 5.01(b). The Seller's chief executive office and principal place of business has not changed within the past 12 months.
(j) The Seller is not known by received fair consideration and does not use any tradename or doing-business-as name, except reasonably equivalent value in exchange for Dimon International AG, Intabex SA, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trans-Continental Leaf Tobacco Corporation Ltd, Trans-Continental Leaf Tobacco Corporation AG (TCLTC AG), W.A. ▇▇▇▇▇ Company and Trans-Continental Leaf Tobacco Corporation SAthe sale of the interests in the Mortgage Loans.
(k) There are no actionsThe Seller did not sell any interest in any Mortgage Loan with any intent to hinder, suits delay or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting the Seller, or defraud any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Seller or on the collectability of a material portion of the Sold Receivables or (ii) involve this Agreement or any transaction contemplated hereby. The Seller is not in default of any contractual obligation or in violation of any order, rule or regulation of any governmental authority, which default or violation may have a material adverse effect upon (i) the financial condition of the Seller or (ii) the insurance of any Eligible Receivables under the Policycreditors.
(l) The balance sheets Seller is solvent and the Seller will not be rendered insolvent as a result of the Seller and its consolidated Subsidiaries as at December 31, 2011, and the related statements of income and retained earnings sale of the Seller and its consolidated Subsidiaries as of and for Mortgage Loans.
(m) On the fiscal year then endedStartup Day, copies of which the Trustee will have been furnished to the Purchaser, fairly present the financial condition good title on behalf of the Seller Trust to each Initial Mortgage Loan and its consolidated Subsidiaries as at such date and other items comprising the results corpus of the operations Trust Estate free and clear of the Seller and its consolidated Subsidiaries for the period ended on such date, prepared on a basis consistent with generally accepted accounting principles consistently applied. From December 31, 2011 to the date of this Agreement, other than as publicly disclosed by the Seller in SEC filings on Form 8K, Form 10‑Q and amendments to Form 10‑Q made prior to the date of this Agreement, there any lien.
(n) There has been no material adverse change in the business, operations, property or financial or other condition of any information submitted by the Seller (it being understood that (i) a change in writing to the debt ratings of the Seller does not, in and of itself, constitute a material adverse change and (ii) this representation is made only as of the date of this Agreement)Certificate Insurer.
(mo) There is no pending or, to To the best knowledge of the Seller, threatened action no document (including any information provided in electronic form) submitted by or proceeding affecting on behalf of the Seller to the Certificate Insurer contains any untrue or any misleading statement of its Subsidiaries before any court, governmental agency or arbitrator which is reasonably likely to have a material adverse effect, except as disclosed in the financial statements fact or filings referred fails to in Section 4.01(l).
(n) No transaction contemplated hereby requires compliance with any bulk sales act state a material fact required to be stated therein or similar law.
(o) All financing statements necessary in order to perfect make the Purchaser's ownership interest in the Receivables have been prepared and filedstatements therein not misleading.
(p) The sales of Receivables by To the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors best knowledge of the Seller. Each such sale , no material adverse change affecting any security for the Class A Certificates has been made occurred prior to delivery of and payment for “reasonably equivalent value” (as such term is used in Section 548 of the United States Bankruptcy Code) and not for or on account of “antecedent debt”(as such term used in Section 547 of the United States Bankruptcy Code) owed by the Seller to the PurchaserClass A Certificates.
(q) In selecting The Seller is not in default under any agreement involving financial obligations or on any outstanding obligation which would materially adversely impact the Eligible Receivables financial condition or operations of the Seller or legal documents associated with the transaction contemplated in this Agreement.
(r) The Seller shall not generally solicit refinancings of the Mortgage Loans; provided however, that this covenant shall not prevent or restrict the Seller from soliciting or otherwise agreeing to refinancings on the following basis: (1) general solicitations, by mail, advertisement or otherwise of the general public or persons on a targeted list, so long as the list was not generated from the Mortgage Loan Schedule, (2) unsolicited refinancings by the Seller in connection with a Mortgagor's request for refinancing, (3) refinancings in connection with the Seller's policy to solicit (i) Mortgagors who indicate to the Seller their intent to refinance their Mortgage Loans, (ii) with respect to Mortgage Loans in Group II, Mortgagors with Mortgage Loans for which the next interest rate adjustment is determined by the Seller to be sold hereunderhigher than the current market rate for a fixed rate mortgage loan with the same risk qualifications or (iii) in connection with the general solicitation described in (1) above, and (4) as otherwise disclosed in the Seller has not used any selection criteria Prospectus Supplement or the Prospectus. It is understood and agreed that are materially adverse the representations and warranties set forth in this Section 3.1 shall survive delivery of the Mortgage Loans to the Purchaser or its assigneesTrustee.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-4)