Representations and Warranties of the Seller. The Seller represents and warrants as follows: (a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not 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 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 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 corporate 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity). (e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest. (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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished. (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). The Seller has not changed its name during the two years prior to the date of this Agreement. (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)). 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 known by or uses any registered tradename or doing-business-as name. (o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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. (v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Secondary Purchase Agreement (Ingersoll Rand Co LTD)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business, business and is in good standing, standing as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified, unless except where the failure to be so qualify qualified would not 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 perform their respective obligations hereunderMaterial 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 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 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 the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the its due execution, delivery and performance by the Seller of the Agreement or any other Transaction Documents Document to which it is a party or any party, other document to be delivered by it thereunder except for than the filing of financing statements which are Uniform Commercial Code filings referred to thereinin 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 each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller’s best knowledge, threatened, action, investigation threatened action or proceeding affecting the Seller or any of its subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator which may have a Material Adverse Effectarbitrator.
(hf) No proceeds of any Purchase purchase or reinvestment will be used (i) to acquire any equity security of a class which that 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.
(ig) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized in any The Seller Report or other written statement made by or on behalf is the legal and beneficial owner 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 Pool Receivables and Related Security, is owned (immediately prior to its sale hereunder) by the Seller 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 the each Purchaser). When the Purchaser makes a Purchase it ) shall acquire a valid and enforceable perfected first priority undivided percentage ownership or security interest, to the extent of the Purchased Interest, in each Transferred Pool Receivable then existing or thereafter arising and in the Related Security Security, Collections and Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim Claim. The Agreement creates a security interest in favor of the Administrator (other than 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 Adverse Claim arising solely as the result of any action taken by the Purchaser), and no Claims. No effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security or 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 Seller in accordance with pursuant to the Initial Purchase Agreement, in favor Sale Agreement and the Administrator (for the benefit of Purchaser in accordance with this 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 the Purchaser. Nothing Person in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestsuch Pool Asset.
(kh) Each Seller Report Information Package (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished 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, and does not and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
(li) The Seller’s (x) principal place of business and chief executive office of the Seller and the office where the Seller it keeps its records concerning the Transferred Receivables are and (y) “location” (as such term is used in the UCC), are, in each case, located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior Sections 1(b) and 2(b) of Exhibit IV to the date of this Agreement.
(mj) 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 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 same may be updated from time to time pursuant to Section 5.01(g)). The Administrator in accordance with the Agreement) and all Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remitted, subject to Lock-Box Agreements (except as expressly permitted pursuant otherwise agreed to in writing by the terms Administrator). Seller has not granted to any Person, other than the Administrator as contemplated by the Agreement, dominion and control of Section 5.01(hany 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) hereofThe Seller is not 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) None Each Pool Receivable included as an Eligible Receivable in the calculation of the Seller or any Originator Net Receivables Pool Balance is known by or uses any registered tradename or doing-business-as namean Eligible Receivable.
(o) With 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 to any programs used of, or reinvestment in respect of, the servicing Purchased Interest or from the application of the Receivables, no sublicensing agreements are necessary in connection with the designation of proceeds therefrom that constitutes a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company Termination Event 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 sublicensingUnmatured Termination Event.
(p) The Seller has accounted for each sale of Transferred 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 Sellerconsistent with generally accepted accounting principles.
(q) The Seller has (i) timely filed complied in all federal tax returns required material respects with the Credit and Collection Policy of each Originator with regard 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 each Receivable originated 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)Originator.
(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 notset 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 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(k)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not controlled by, an “investment company,” or a company “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. 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 Effectamended.
(u) [Reserved].
(v) With respect to each Transferred Receivable, Receivable transferred to the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution under the Sale Agreement, Seller has given reasonably equivalent value to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration therefor and reasonably equivalent value, and each such sale referred to in the foregoing clause (ii) shall transfer was not have been made for or on account of an antecedent debt owed debt. No transfer by any Originator to of any Receivable under the Seller and no such sale Sale Agreement is or may be voidable or subject to avoidance under any section Section of the Federal Bankruptcy Code.
(vw) Each Contract with respect to each Receivable is an “eligible asset” 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 defined 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 Rule 3a-7 promulgated a proceeding in equity or at law).
(x) Since its most recent fiscal year end, there has been no change in the business, operations, financial condition, properties or assets of the Seller which would have a Material Adverse Effect on its ability to perform its obligations under the Investment Company Act of 1940, as amendedAgreement 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.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it as presently conducted and to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans contained 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 Transfer Agreement were 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 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 Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the Purchaser), Seller pursuant to Sections 1.04(b)(vii) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(viii) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the PurchaserTransferor in the Transfer Agreement or Bring Down Letter. Nothing in this Section 4.01(j) The Seller shall constitute 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 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 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 January 31, 2005:
(i) The information set forth with respect to the priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or (except as otherwise disclosed to the Purchaser at dates respecting which such time) as of the date so furnished.information is given;
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 As of the Seller.Closing Date, no Mortgage Loan is in foreclosure;
(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 As of the payment of all taxesClosing Date, assessments and other governmental charges (other than any tax, assessment or governmental charge which each Mortgage Loan 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” a "qualified mortgage" 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 Section 860G of the Originators attached hereto Code (as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreementdetermined without regard to Treas.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it as presently conducted and to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans contained 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 Transfer Agreement were 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 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 Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the Purchaser), Seller pursuant to Sections 1.04(b)(vii) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(viii) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the PurchaserTransferor in the Transfer Agreement or Bring Down Letter. Nothing in this Section 4.01(j) The Seller shall constitute 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 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 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 January 27, 2005:
(i) The information set forth with respect to the priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or (except as otherwise disclosed to the Purchaser at dates respecting which such time) as of the date so furnished.information is given;
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 As of the Seller.Closing Date, no Mortgage Loan is in foreclosure;
(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 As of the payment of all taxesClosing Date, assessments and other governmental charges (other than any tax, assessment or governmental charge which each Mortgage Loan 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” a "qualified mortgage" 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 Section 860G of the Originators attached hereto Code (as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreementdetermined without regard to Treas.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. The Seller represents and warrants to the Company as follows:
(a) The Seller is a corporation duly organized, validly existing and is in good standing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every the jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunderorganization.
(b) Seller has full legal capacity, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution, execution and 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 corporate powers, (ii) transactions contemplated hereby by Seller have been duly and validly authorized by all necessary corporate action, (iii) do not contravene (1) action on the Seller’s organizational documents, (2) any law, rule or regulation applicable to the part of Seller, (3) any contractual restriction binding and no other proceedings on the part of Seller are necessary to authorize this Agreement or affecting to consummate 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 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 Sellertransactions contemplated hereby.
(c) No authorization or approval or other action by, This Agreement has been duly and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery validly executed and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder except for the filing Seller and constitutes a valid and binding agreement of financing statements which are referred to thereinSeller, enforceable against Seller in accordance with its terms.
(d) This Agreement Seller owns of record the Purchase Option and each is assigning it to the Company free and clear of all “adverse claims” (as such term is defined in Section 8-102(a)(1) of the other Transaction Documents to be delivered by the Seller pursuant hereto constitutes the legal, valid and binding obligation Uniform Commercial Code of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement State of creditors’ rights generally and general principles of equity, whether considered in an action at law or equityNew York).
(e) Sales made The execution and delivery of this Agreement by Seller does not, and the performance of the terms of this Agreement by Seller will not, (i) require Seller to obtain the consent or approval of, or make any filing with or notification to, any governmental or regulatory authority, domestic or foreign; (ii) conflict with or violate the organizational documents of Seller; (iii) require the consent or approval of any other person pursuant to this Agreement will constitute any agreement, obligation or instrument binding on Seller or its properties and assets; (iv) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable to Seller or by which any property or asset of Seller is bound; or (v) violate any other agreement to which Seller is a valid saleparty, transferincluding, and assignment of the Transferred Receivables to the Purchaserwithout limitation, enforceable against creditors ofany voting agreement, and purchasers fromstockholders agreement, the Seller. The Seller shall have no remaining property interest in any Transferred Receivableirrevocable proxy, or voting trust.
(f) [Intentionally omittedSeller acknowledges that (i) the Company may have possession of material, non-public information concerning the Company and its securities (collectively, the “Excluded Information”) and the Company is not sharing the Excluded Information with Seller; (ii) Seller does not possess or have access to the Excluded Information, and, as a consequence, there may exist a disparity of information between the Company and the Seller with respect to the Company and its securities, including the Purchase Option; (iii) the Excluded Information could be indicative of a value of the Purchase Option that is higher than the Purchase Price reflected in the sale or could otherwise be adverse to the Seller; and (iv) the Excluded Information may be material to Seller’s decision to sell the Purchase Option.]
(g) There is Seller has not requested the Excluded Information and agrees that the Company shall not be obligated to disclose any Excluded Information to the Seller and that the Company shall have no pending orliability with respect to any non-disclosure of the Excluded Information. As a condition to the Company’s agreement to buy the Purchase Option, to the knowledge fullest extent permitted by law, the Seller hereby releases and waives any and all claims, causes of action, actions, proceedings, suits, judgments, liens and executions, claims and causes of action, whether known or unknown, now or hereafter arising against the Company, based upon or relating to such non-disclosure or the Seller’s failure to review the Excluded Information and further covenants not to ▇▇▇ the Company for any loss, damage or liability arising from or relating to the sale 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 EffectPurchase Option.
(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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible assetaccredited investor” as defined in Rule 3a-7 promulgated 501 under the Investment Company Securities Act of 19401933, as amended, and (ii) has not relied upon the Company for any investigation into, assessment of, or evaluation with respect to the Purchase Option, the Company and/or the transactions contemplated hereby. The Seller further acknowledges that the Company has not made any representation or warranty whatsoever with respect to the business, condition (financial or otherwise), properties, prospects, creditworthiness, status or affairs of the Company or with respect to the value, terms or enforceability of the Purchase Option.
Appears in 1 contract
Sources: Unit Purchase Option Repurchase Agreement (Highbury Financial Inc)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act Transferor of 1934, (ii) to acquire any security Mortgage Loans 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 Transfer Agreement were made by or on behalf of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, as of the date of transfer under 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 related Transfer Agreement and (ii) a representation or warranty of the Seller Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free and clear of any Adverse Claim such representation or warranty (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 Transferred 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 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 representation of the Seller in accordance with Sections 1.04(b)(xi) and 1.04(b)(xiii)) shall be the Initial Purchase Agreement, right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations in favor Sections 1.04(b)(xi) and 1.04(b)(xiii) shall be direct obligations of Purchaser in accordance with this Agreement, or in connection with any Adverse Claim arising solely as the result Seller. The Depositor acknowledges and agrees that the representations and warranties of any action taken by the Purchaser. Nothing Seller in this Section 4.01(j1.04(b) (other than the representations in Sections 1.04(b)(xi) and 1.04(b)(xiii)) 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 constitute 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 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. The Seller represents and warrants upon delivery of the Mortgage Loans on the Closing Date to the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 timeMortgagor’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 so furnished.
(l) The principal place of business recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located 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 specifically referred to in Section 5.01(b)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. The Seller 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 not changed its name during full right to sell and assign the two years same to the Trustee;
(vi) Immediately prior to the date of this Agreement.
(m) The names transfer and addresses of all the Lock-Box Banks, together with the account numbers assignment of the Lock-Box Accounts at such Lock-Box BanksMortgage Loans to the Depositor, are specified in Exhibit B (as the same may be updated from time 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 time pursuant transfer and sell each Mortgage Loan to Section 5.01(g)). The Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remittedDepositor free and clear, except as expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinderno prior holder of the related Mortgage, delay including the Seller, has done, by act or defraud creditors omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filed’s knowledge, (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 no foreclosure action is being contested in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).premises were intended;
(rix) The Seller 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 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 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;
(xii) Each Mortgage Loan is not, and is not controlled by, an a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company Act Code and Treas. Reg. §1.860G-2;
(xiii) None of 1940the Mortgage Loans are “high cost” loans as defined under any applicable federal, state or local predatory and abusive lending laws; and
(xiv) The information set forth in the Prepayment Charge Schedule included as part of the Mortgage Loan Schedules at Schedule (including the Prepayment Charge Summary attached thereto) is exempt 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. It is understood and agreed that the representations and warranties set forth in Section 1.04(b) herein shall survive the Closing 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 subparagraph (xiv) under Section 1.04(b)), that adversely and materially affects the value of the related Mortgage Loan 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; provided, however, notwithstanding anything to the contrary herein, this paragraph shall be specifically applicable to a breach by the Seller of subparagraphs (xi) and (xiii) under this Section 1.04(b) irrespective of the Transferor’s breach of a representation or warranty in the Transfer Agreement. 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 all provisions of such actthe Depositor at the applicable Purchase Price or (c) within the two-year period following the Closing Date substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(sc) The receivables credit Notwithstanding the third paragraph of Section 1.04(b), in connection with the Seller’s representations and collection policies warranties made in subparagraph (xiv) of such Section and practices within 90 days of the Originators attached hereto as Exhibit A are in effect as earlier of discovery by the Seller or receipt of notice from the applicable Servicer or the NIMS Insurer of a breach of such representation and warranty by the Seller, which breach materially and adversely affects the interests of the date of this Agreement. Since the date of this Agreement, there have been no material changes Class P Certificateholders 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 Receivableany Prepayment Charge, the Seller shall, if (i) shall have received each Transferred Receivable acquired by it as such representation and warranty is breached and a contribution to the capital of the Seller by the applicable Originator Principal Prepayment has occurred or (ii) shall have purchased if a change in law subsequent to the Closing Date, as applicable, limits the enforceability of the Prepayment Charge (other than in the circumstances set forth in subparagraph (xiv) of Section 1.04(b), pay, at the time of such Transferred Receivable from Principal Prepayment or change in law, the applicable Originator amount of the scheduled Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Certificate Account no later than the Deposit Date immediately following the Prepayment Period in exchange for payment (which such Principal Prepayment on the related Mortgage Loan or such change in law has occurred, net of any Servicer Prepayment Charge Payment Amount made by the Seller applicable Servicer with respect to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.the
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents hereby makes the following representations and warrants as followswarranties to the Purchaser, which may be relied on by any subsequent purchasers of the Purchaser’s capital stock and their counsel:
(a) The Seller is a corporation duly organizedowns the Shares free and clear of all any and all liens, validly existing claims, encumbrances, preemptive rights, right of first refusal and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not 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 perform their respective obligations hereunderany kind.
(b) The executionSeller has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and otherwise to carry out Seller’s obligations hereunder. No consent, delivery approval or agreement of any individual or entity is required to be obtained by the Seller in connection with the execution and performance by the Seller of this Agreement or the execution 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 corporate 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 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 Transferred Receivables pursuant to this Agreement). This Agreement and each of the other Transaction Documents to be delivered performance by the Seller pursuant hereto of any agreements, instruments or other obligations entered into in connection with this Agreement.
(c) 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder except for the filing of financing statements which are referred to therein.
(d) . This Agreement constitutes, or shall constitute when executed and each of the other Transaction Documents to be delivered by the Seller pursuant hereto constitutes the legaldelivered, a valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of creditors’ of, creditor’s rights generally and general remedies or by other equitable principles of equitygeneral application.
(d) There is no private or governmental action, whether considered in an action at law suit, proceeding, claim, arbitration or equity)investigation pending before any agency, court or tribunal, foreign or domestic, or, to the Seller’s knowledge, threatened against the Seller or any of Seller’s properties. There is no judgment, decree or order against the Seller that could prevent, enjoin, alter or delay any of the transactions contemplated by this Agreement.
(e) Sales made pursuant to this Agreement will constitute a valid saleThere are no material claims, transferactions, and assignment of the Transferred Receivables to the Purchasersuits, enforceable against creditors ofproceedings, and purchasers frominquiries, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no labor disputes or investigations pending or, to the knowledge of the Seller’s knowledge, threatened, action, investigation or proceeding affecting threatened against the Seller or any of its subsidiaries assets, at law or in equity or by or before any courtgovernmental entity or in arbitration or mediation. No bankruptcy, receivership or debtor relief proceedings are pending or, to the Seller’s knowledge, threatened against the Seller.
(f) The Seller has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state, local or foreign Law, judgment, decree, injunction or order, applicable to it, the conduct of its business, or the ownership or operation of its business. References in this Agreement to “Laws” shall refer to any laws, rules or regulations of any federal, state or local government or any governmental agency or arbitrator which may have a Material Adverse Effectquasi-governmental agency, bureau, commission, instrumentality or judicial body (including, without limitation, any federal or state securities law, regulation, rule or administrative order).
(g) The Seller is aware of the Company’s business affairs and financial condition and has reached an informed and knowledgeable decision to sell the Shares.
(h) No proceeds The Seller acknowledges that it is aware of any Purchase and acknowledges that it is the intention of the Company to cause the Company to consummate a merger with a private company following the Closing. Seller acknowledges and confirms that it understands that, upon consummation of that merger, it is likely that each Share will increase in value, possibly substantially. Seller has been made aware of all of the information concerning the proposed merger, the private placement related thereto in which the Company will be used (i) recapitalized with significant cash proceeds, and about the target company for the merger, including the risks associated therewith to acquire the same extent that the Buyers have been made aware of such information, and have received satisfactory answers to any equity security of a class which is registered pursuant questions Seller has asked and desires to Section 12 complete the sale 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 Shares 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 under this Agreement. Since Seller has acknowledged and does acknowledge that as a result of the date of this Agreement, there have been no material changes in the Credit merger 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 Receivableprivate placement, the percentage ownership of the Company will be reduced, in certain cases to zero, that Seller (i) shall have received each Transferred Receivable acquired by it as a contribution no right to the capital adjustment of the Seller by number of shares, and the applicable Originator Company has no obligation to provide any “anti-dilution” or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cashother protection, deferred purchase pricepre-emptive, subscription, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value, and each such sale referred first refusal rights to in the foregoing clause (ii) 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 CodeSeller.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller hereby represents and warrants as follows:
(a) The Seller is a corporation statutory trust duly organized, validly existing and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not 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 perform their respective obligations 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 use of the proceeds of Purchasespurchases and reinvestments, (i) are within the Seller’s corporate statutory trust powers, (ii) have been duly authorized by all necessary corporate statutory trust action, (iii) do not contravene (1) the Seller’s organizational documentscertificate of trust or trust agreement, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction 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 Transferred Receivables created pursuant to this Agreement). This Agreement and each 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder thereunder, except for the filing of UCC financing statements which are referred to therein.
(d) This Agreement and each 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gf) 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 EffectEffect on the Seller.
(g) On the date of each purchase and reinvestment (and after giving effect thereto), the sum of the Receivable Interests is not greater than the Maximum Percentage Factor.
(h) No proceeds of any Purchase purchase or reinvestment 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) Immediately prior to the purchase by the relevant Investor and/or Banks, as the case may be, the Seller is the legal and beneficial owner of the Pool Receivables and Related Security free and clear of any Adverse Claim other than, with respect to the initial purchase, any Adverse Claim to be released pursuant to Section 2.02(e); upon each purchase or reinvestment, the Investors or the Banks, as the case may be, shall acquire a valid and perfected first priority undivided percentage interest to the extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto. No transaction contemplated hereby requires compliance effective financing statement or other instrument similar in effect covering any Contract or any Pool Receivable or the Related Security or Collections with respect thereto is on file in any bulk sales act or similar law.
(j) recording office, except those filed in favor of the Program Agent relating to this Agreement and those filed in favor of the Designated Entities and the Intermediate SPVs pursuant to the Purchase Agreements. 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 or as included in the Net Receivables Pool Balance is, as of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, together with Receivable or properly included in 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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 PurchaserNet Receivables Pool Balance. Nothing in this Section 4.01(j4.01(i) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(kj) Each Seller Report (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Purchaser Program Agent, the Investor Agents, 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 Program Agent, the Investor Agents the Investors or the Banks, as the case may be, at such time) as of the date so furnished.
(lk) The principal place of business and chief executive office of the Seller and the office offices where the Seller keeps its records concerning the Transferred Pool Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.
(ml) 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 Exhibit B (Schedule I hereto, as the same 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, except as expressly permitted pursuant to the terms of Section 5.01(h) hereof.
(m) 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) except with respect to Two-Step Dealer Receivables, 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, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(n) None of the The Seller or any Originator is not known by or uses and does not use any registered tradename or doing-business-as name.
(o) With respect to The Seller was formed on February 27, 2009, and the Seller did not engage in any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable business activities prior to the applicable Originator), except for those programs licensed from Persons which are not affiliated with the applicable Originator which by the express terms date of such license either (i) require the consent of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensingthis Agreement. The Seller has no Subsidiaries.
(p) (i) The sale fair value of Transferred Receivables the property 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 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.
(q) With respect to each Pool Receivable, the Seller shall have purchased such Pool Receivable from the applicable Intermediate SPV in exchange for payment (made by the Seller to such Intermediate SPV in accordance with the Purchaser pursuant to this provisions of the applicable Purchase Agreement) in an amount which constitutes fair consideration and reasonably equivalent value, and all other transactions between each such sale shall not have been made for or on account of an antecedent debt owed by any Intermediate SPV to the Seller and the Purchaser, have been and will no such sale is or may be made in good faith and without intent voidable or subject to hinder, delay or defraud creditors avoidance under any section of the SellerFederal Bankruptcy Code.
(qr) 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).
(rs) 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. 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 EffectEffect on the Seller.
(u) With respect to each Transferred ReceivableThe Seller does not carry on business from premises in Bermuda, the Seller (i) shall have received each Transferred Receivable acquired by at which it as a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration employs staff and reasonably equivalent value, pays salaries and each such sale referred to in the foregoing clause (ii) 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 Codeother expenses.
(v) Each Receivable The location of the Seller’s chief executive office and domicile for the purposes of the Personal Property Security Act (or, in the case of the Province of Quebec, the Civil Code) of any Canadian province or territory the laws of which are required to be applied in connection with the issue of perfection of interests in the Canadian Receivables is an at the address referred to in Section 5.01(b).
(w) The Seller does not carry on business in Canada for the purposes of the Tax Act and is not registered under Canadian goods and services or provincial sales tax legislation.
(x) None of the services (if any) rendered to the Obligor which give rise to any Canadian Receivables are rendered in Canada.
(y) No Contract or any other books, records or other information relating to any Canadian Receivable, contain any “eligible assetpersonal 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 Rule 3a-7 promulgated under force from time to time which restrict, control, regulate or otherwise govern the Investment Company Act collection, holding, use or communication of 1940, as amendedinformation.
Appears in 1 contract
Sources: Receivable Interest Purchase Agreement (Ingersoll Rand Co LTD)
Representations and Warranties of the Seller. 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 organizednational banking association, validly existing and in good standing under the laws of Delawarethe United States of America and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it as presently conducted and to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans contained 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 Transfer Agreement were 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 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 Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the Purchaser), Seller pursuant to Sections 1.04(b)(vii) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(viii) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the PurchaserTransferor in the Transfer Agreement or Bring Down Letter. Nothing in this Section 4.01(j) The Seller shall constitute 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 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 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 September 29, 2005:
(i) The information set forth with respect to the priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or (except as otherwise disclosed to the Purchaser at dates respecting which such time) as of the date so furnished.information is given;
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 As of the Seller.Closing Date, no Mortgage Loan is in foreclosure;
(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 As of the payment of all taxesClosing Date, assessments and other governmental charges (other than any tax, assessment or governmental charge which each Mortgage Loan 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” a "qualified mortgage" 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 Section 860G of the Originators attached hereto Code (as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreementdetermined without regard to Treas.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Wachovia Mortgage Loan Trust, Series 2005-Wmc1)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organizedformed, validly existing and in good standing under the laws of Delawarethe State of Nevada, 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, unless the qualified if any failure to be so qualify qualified would not be reasonably likely to 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 perform their respective obligations hereunderMaterial 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 use of the proceeds of PurchasesInvestments, Reinvestments and the Deferred Purchase Price, (i) are within the Seller’s corporate limited liability company powers, (ii) have been duly authorized by all necessary corporate actionlimited liability company action on the part of the Seller, (iii) do not contravene or result in a default under or conflict with (1) the Seller’s organizational documentsarticles of organization or limited liability company agreement, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction 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 propertyproperty unless, in each case, such contravention, default or conflict could not reasonably be expected to have a Material Adverse Effect, 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 Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has which it is a party have 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 Governmental Authority or regulatory body other Person is required for the due execution, delivery and performance by the Seller of the Agreement or any other Transaction Document to which it is a party other than those previously obtained or UCC filings.
(d) Each of the Agreement and the other Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, The Seller is the legal and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors beneficial owner of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, has good and marketable title to the knowledge of Receivables purporting to be in the SellerReceivables Pool and all Related Security with respect thereto, 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, is owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim Claim. Upon each Investment or Reinvestment under the Agreement (other than any Adverse Claim arising solely as including, without limitation, the result of any action taken by deemed Investment occurring on the PurchaserClosing Date pursuant to Section 1.3(a). When ), the Purchaser makes a Purchase it shall acquire a valid and enforceable perfected first priority ownership of or security interest in each Transferred Pool Receivable then existing or thereafter arising, and in the Related Security and Collections and other proceeds with respect thereto thereto, free and clear of any Adverse Claim (other than Claim. The Agreement creates a valid ownership or security interest in favor of the Purchaser in the Pool Assets, and the Purchaser has a first priority perfected ownership or security interest in the Pool Assets, free and clear of any Adverse Claim arising solely as the result of any action taken by the Purchaser), and no Claims. No effective financing statement or other instrument similar in effect covering any Transferred Receivable, Contract or any interest therein, Pool Receivable or the Related Security or Collections with respect thereto or any Lock-Box Account is on file in any recording office office, except such as may be those filed in favor of the Seller in accordance with and the Initial Purchase Agreement, in favor of Purchaser in accordance with pursuant to this Agreement, or in connection with any Adverse Claim arising solely as Agreement and the result of any action taken by the Purchaser. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security InterestTransaction Documents.
(kf) Each Seller Report (if prepared by the Seller, or to the extent that information contained therein is supplied by the Seller)Monthly Report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Agent or the Purchaser in connection with this the 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 no such item contains or will contain any untrue statement of a material fact.
(lg) The principal place of business and chief executive office (as such terms are used in the UCC) 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). The Seller has not changed its name during the two years prior to the date 1(b) of this AgreementExhibit IV.
(mh) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box BanksBanks and any lock-boxes or post office boxes relating to such Lock-Box Accounts, are specified in Schedule II to the Agreement (except as otherwise consented by the Agent in accordance with clause (i) of Exhibit B (as IV to the same may be updated from time to time pursuant to Section 5.01(g)). The Agreement) and all such Lock-Box Accounts Accounts, lock-boxes and post office boxes are subject to Lock-Box Agreements. All Obligors have been directed to make all payments with respect to each Contract to such a Lock-Box Account or to such a lock-box or post office box.
(i) The Seller is not in violation of any law, rule or regulation or of any order of any court, arbitrator or Governmental Authority that could be reasonably be expected to have a Material Adverse Effect.
(j) No proceeds of any purchase or reinvestment will be used by the only accounts into Seller for any purpose that violates any applicable law, rule or regulation, including, without limitation, Regulations T, U or X of the Federal Reserve Board.
(k) Each Receivable included in the calculation of the Net Eligible Pool Balance is an Eligible Receivable as of the date of such calculation.
(l) No event has occurred and is continuing, or would result from any Investment or Reinvestment or from the application of the proceeds therefrom, which Collections of Receivables are deposited constitutes a Termination Event or remitted, except as expressly permitted pursuant an Unmatured Termination Event.
(m) The Seller has complied in all material respects with the Credit and Collection Policy with regard to the terms of Section 5.01(h) hereofeach Pool Receivable.
(n) None The Seller has complied with all of the Seller or any Originator is known by or uses any registered tradename or doing-business-as nameterms, covenants and agreements contained in the Agreement and the other Transaction Documents.
(o) With respect to any programs used The Seller’s complete corporate name is set forth in the servicing of preamble to the ReceivablesAgreement, no sublicensing agreements are necessary and the Seller does not use and has not during the last five (5) years used any other corporate name, trade name, doing-business name or fictitious name, and except for names first used after the Closing Date and set forth in connection with a notice delivered to the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit 1(l)(vii) of such programs (it being understood that, however, the Collection 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 sublicensingExhibit IV.
(p) The sale of Transferred Receivables by the Seller has filed or caused to the Purchaser pursuant to this Agreement, be filed all U.S. federal income tax returns and all other transactions between returns, statements, forms and reports for taxes, domestic or foreign, required to be filed by it and has paid all taxes payable by it which have become due or any assessments made against it or any of its Property and all other taxes, fees or other charges imposed on it or any of its Property by any Governmental Authority (other than those the Seller and the Purchaser, have been and will be made amount or validity of which is currently being contested in good faith by appropriate proceedings and without intent with respect to hinder, delay or defraud creditors which reserves in conformity with generally accepted accounting principles have been provided on the books 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 as amended.
(r) The consolidated balance sheet of Manitowoc as at March 31, 2010, a copy of which has been furnished to the Agent, fairly presents the financial condition of Manitowoc in all provisions material respects, as at such date, and since the date of such actbalance sheet, there has been no material adverse change in the financial condition of the Seller or Manitowoc or the ability of the Seller or any Originator to perform their material obligations under the Agreement or the other Transaction Documents to which it is a party or the collectibility of the Pool Receivables, or which affects the legality, validity or enforceability of the Agreement or the other Transaction Documents.
(s) The receivables credit and collection policies and practices There is no pending action, suit or proceeding and, to the Seller’s knowledge, no threatened action, suit or proceeding, affecting the Seller, the Servicer or any Originator before any Governmental Authority or arbitrator which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or which questions the validity of any of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreementtransactions contemplated by any Transaction Document.
(t) No event or circumstance has occurred since The facts and assumptions relating to the date of this Seller set forth in the opinions rendered by ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP pursuant to Exhibit II to the Agreement that has a Material Adverse Effectand relating to true sale and non-consolidation matters, and in the officer’s certificates referred to in such opinions, are true and correct in all material respects.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) shall not have been made for or on account of an antecedent debt owed by any Originator to the Seller and no such sale The Seller’s federal tax identification number is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code▇▇-▇▇▇▇▇▇▇.
(v) Each Receivable The Seller is an “eligible asset” as defined not in Rule 3a-7 promulgated default under the Investment Company Act any of 1940, as amendedits contractual obligations.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business, business and is in good standing, standing as a foreign limited liability company in every jurisdiction where the nature of its business requires it to be so qualified, unless except where the failure to be so qualify qualified would not 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 perform their respective obligations hereunderMaterial 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, Investments and Reinvestments: (i) are within the Seller’s corporate its organizational powers, ; (ii) have been duly authorized by all necessary corporate 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 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 the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the its due execution, delivery and performance by the Seller of the Agreement or any other Transaction Documents Document to which it is a party or any party, other document to be delivered by it thereunder except for than the filing of financing statements which are Uniform Commercial Code filings referred to thereinin Exhibit II to the Agreement, all of which shall have been filed on or before the Closing Date.
(d) This Each of the Agreement and each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller’s best knowledge, threatened, action, investigation threatened action or proceeding affecting the Seller or any of its subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator which may have a Material Adverse Effectarbitrator.
(hf) No proceeds of any Purchase Investment or Reinvestment will be used (i) to acquire any equity security of a class which that 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.
(ig) No transaction contemplated hereby requires compliance The Seller is the beneficial owner of, and, except with respect to 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 Australian Originator Receivable, together with is the legal owner and has good and marketable title to, the Pool Receivables, the Lock-Box Accounts (and related lock-boxes) (except as permitted by Section 5.21) and Related Security, is owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim Claim. Upon each Investment or Reinvestment, the Administrator (other than any Adverse Claim arising solely as on behalf of the result of any action taken by the Purchaser). When the Purchaser makes a Purchase it Purchasers) shall acquire a valid and enforceable perfected first priority ownership of or security interest in each Transferred Pool Receivable then existing or thereafter arising and in the Related Security Security, Collections and Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim Claim. The Agreement creates a valid and continuing ownership or security interest (other than any Adverse Claim arising solely as defined in the result of any action taken by the Purchaser), and no effective financing statement applicable UCC 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 PPSA) in favor of the Administrator in the Pool Assets and the Lock-Box Accounts (and related lock-boxes), which ownership or 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 or PPSA financing statements in accordance with the Initial Purchase Agreement, proper filing offices in favor the appropriate jurisdictions under Applicable Laws in order to perfect the ownership or security interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes) (except as permitted by Section 5.21) granted to the Administrator (on behalf of Purchaser in accordance with the Purchasers) hereunder. Other than the ownership or security interest granted to the Administrator (on behalf of the Purchasers) pursuant to this 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 PurchaserPool Assets, other than any UCC financing statement relating to the security interest granted to the Administrator (on behalf of the Purchasers) hereunder or that has been terminated. Nothing 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 original copies of the tangible chattel paper that constitutes or evidences such Pool Receivables, and the Seller has filed the financing statements described in this Section 4.01(j) shall constitute section above, each of which will contain a representation statement that “A purchase of or warranty 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 as to or the priority, as against any other secured creditors Administrator (on behalf of the relevant Obligor, of any Underlying Inventory Security InterestPurchasers).
(kh) Each Seller Information Package and Interim Report (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or one of its Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished 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 Administrator or such Purchaser Agent, as applicable, at such time) as of the date so furnished.
(li) 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 concerning the Transferred Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior Sections l(b) and 2(b) of Exhibit IV to the date of this Agreement.
(mj) 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 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 same may be updated from time to time pursuant to Section 5.01(g)). The Administrator in accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements (or will be subject to Lock-Box Agreements in accordance with Section 5.21 within the only accounts into which Collections time period specified therein). Except as set forth in Section 5.21, with respect to all Lock-Box Accounts (and related lock-boxes), the Seller has delivered to the Administrator, on behalf of Receivables are deposited or remittedthe Purchasers, except as expressly permitted a fully executed Lock-Box Agreement pursuant to which the terms applicable Lock-Box Bank has agreed to comply with all instructions given by the Administrator with respect to all funds on deposit in such Lock-Box Account (and all funds sent to the respective lock-box), without further consent by the Seller or the Servicer. Except as set forth in Section 5.21, none of Section 5.01(hthe Lock-Box Accounts (and the related lock-boxes) hereofare 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) The Seller is not in violation of any order of any court, arbitrator or Governmental Authority.
(l) No proceeds of any Investment or Reinvestment will be used for any purpose that violates any Applicable Law, including Regulations T, U or X of the Federal Reserve Board.
(m) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable as of the date such representation and warranty is made.
(n) None No event has occurred and is continuing, or would result from an Investment or Reinvestment or from the application of the Seller proceeds therefrom, that constitutes a Termination Event or any Originator is known by or uses any registered tradename or doing-business-as namean Unmatured Termination Event.
(o) With respect to any programs used in On 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, howeverClosing Date, the Collection Agent, if other than IR Company or an affiliate thereof, shall Purchased Assets will be required to be bound by a confidentiality agreement reasonably acceptable to included on the applicable Originator), except consolidated balance sheet of Peabody for those programs licensed from Persons which are not affiliated with the applicable Originator which by the express terms purposes of such license either (i) require the consent of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensingGAAP.
(p) The sale Seller has complied in all material respects with the Credit and Collection Policy of Transferred Receivables the Originators with regard to each Receivable originated 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 SellerOriginators.
(q) The Seller has (i) timely filed complied in all federal tax returns required material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable 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)it.
(r) 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 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(1)(iv) of Exhibit IV to the Agreement.
(s) The Seller is not, and is not controlled by, (i) required to register as an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), or is exempt from all provisions of such act.
(sii) The receivables credit and collection policies and practices a “covered fund” under Section 13 of the Originators attached hereto U.S. Bank Holding Company Act of 1956, as Exhibit A are amended, and the applicable rules and regulations thereunder. In reaching such determination, the Seller is entitled to rely on the exemption from the definition of “investment company” set forth in effect as Section 3(c)(5) of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this AgreementInvestment Company Act.
(t) No event No: (a) Covered Entity, nor any employees, officers, directors, affiliates, consultants, brokers, or circumstance has occurred since agents acting on a Covered Entity’s behalf in connection with this Agreement: (i) is a Sanctioned Person; (ii) directly, or indirectly through any third party, is engaged in any transactions or other dealings with, involving, or for the date benefit of this Agreement any Sanctioned Person or Sanctioned Jurisdiction, or any transactions or other dealings that has a Material Adverse Effectotherwise are prohibited by any Anti-TerrorismInternational Trade Laws; (b) Pool Asset is Embargoed Property.
(u) With respect The Seller has (a) conducted its business in compliance with all Anti-Corruption Laws and (b) has instituted and maintains policies and procedures designed 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 the applicable Originator or (ii) shall have purchased ensure compliance with such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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 CodeLaws.
(v) Each Receivable (u) The Seller has not issued any LCR Securities, and the Seller is an “eligible asset” as defined in Rule 3a-7 promulgated a consolidated subsidiary of Peabody under the Investment Company Act of 1940, as amendedGAAP.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Representations and Warranties of the Seller. The Seller represents and warrants wan-ants, as of the date hereof and as of the date of each Purchase hereunder and each "Sale" under the Receivables Contribution and Sale Agreement and each Selling Affiliate Receivables Contribution and Sale Agreement, as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every the jurisdiction where indicated at the nature beginning of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunderthis Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents each Purchase Document to be delivered by it hereunderhereunder and under the Receivables Purchase and Sale Agreement and the transactions contemplated hereby and thereby, including the Seller’s sale of Receivables hereunder and the Seller’s 's use of the proceeds of PurchasesPurchases and deposits to the Seller's Account, (i) are within the Seller’s 's corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1i) the Seller’s organizational documents, 's charter or by-laws or (2ii) any law, rule law or regulation applicable to the Seller, (3) any Contract or other contractual restriction 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 Transferred Receivables pursuant to this Agreement). This Agreement properties; and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has been duly executed 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 or other Person is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document Purchase Document to be delivered by it thereunder hereunder or thereunder, or for the perfection of or the exercise by the Agent or any Owner of its rights and remedies under each such Purchase Document, except for (i) the filing filings of the financing statements which are referred to thereinin Article III, all of which, on or prior to the Closing Date, will have been duly made and be in full force and effect, and (ii) upon any Person's becoming a Selling Affiliate hereunder, the filings of the financing statements required pursuant to the definition of the term "Selling Affiliate", all 124 of which, on or prior to the date such Person shall become a Selling Affiliate, will have been duly made and be in full force and effect.
(d) This Agreement and each of the other Transaction Documents to be Each Purchase Document is, or when delivered by the Seller pursuant hereto constitutes hereunder will be, the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and except as such enforceability may be limited by general principles of equity, whether considered in an action at a suit in law or in equity). Each Assignment, when delivered hereunder, will evidence the transfer to the Secondary Purchasers of legal and equitable title to, and ownership of, an undivided percentage ownership interest in the Seller Assets, or a valid and perfected first priority security interest therein.
(e) Sales made The consolidated pro-forma balance sheet of the Seller as at the Closing Date, copies of which have been furnished to the Agent, fairly presents the consolidated pro-forma financial condition of the Seller as at such date after giving effect to the transactions contemplated to take place on the date hereof pursuant to this Agreement will constitute a valid salethe Purchase Documents, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest all in any Transferred Receivableaccordance with generally accepted accounting principles consistently applied.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened, action, investigation or threatened action or proceeding affecting the Seller Seller, Maxtor or any Selling Affiliate or any of its their subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effectmaterially adversely affect (i) the collectibility of the Subject Receivables or the ability of Maxtor, the Seller, any Selling Affiliate or the Collection Agent to collect Subject Receivables or (ii) the ability of Maxtor, the Seller or any Selling Affiliate to perform its obligations under any Purchase Document to be delivered by it hereunder, or which purports to affect the legality, validity or enforceability of any Purchase Document.
(hg) No proceeds of any Purchase or deposit to the Seller's Account (other than the proceeds of Seller Collections) will be used to purchase or carry any margin stock (i) to acquire any equity security within the meaning of a class which is registered pursuant to Section 12 Regulation U issued by the Board 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 Governors of the Federal Reserve BoardSystem).
(ih) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized Immediately prior to the time of the initial creation of an interest hereunder in any Seller Report or other written statement made by or on behalf Asset, the Seller is the legal and beneficial owner of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable isAsset, as of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, together with the Related Security, is owned (immediately prior to its sale hereunder) by the Seller in each case free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as created by this Agreement or to the result of any action taken extent created by the Purchaser)Agent or the Secondary Purchasers or any Owner. When On the Purchaser makes date of the initial creation of an interest in each Subject Receivable hereunder, such Subject Receivable (except as otherwise set forth on the Daily Report) constitutes an Eligible Receivable or Included Foreign Receivable. Upon each Purchase and deposit to the Seller's Account, the Seller shall (i) transfer to the Owner making such Purchase or deposit (and such Owner shall acquire) a Purchase it shall acquire valid and perfected undivided percentage ownership interest in each Seller Asset, or (ii) grant to the Agent, for the 125 benefit of the Beneficiaries, a valid and perfected first priority ownership of security interest in each Transferred Receivable and the Related Security and Collections with respect thereto free Seller Asset, free, and clear of any Adverse Claim (other than any Adverse Claim arising solely except as created by this Agreement and the result of any action taken Assignments or to the extent created by the Purchaser), and no Agent or the Secondary Purchasers or any Owner. No effective financing statement or other instrument similar similarly in effect covering any Transferred Receivable, Seller Asset or any interest therein, Lock Box Account or other deposit account to the Related Security or extent any Collections with respect thereto are from time to time deposited therein is on file in any recording office office, except such as may be those filed in favor of the Seller in accordance with Agent relating to the Initial Purchase AgreementDocuments, or 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller and the Agent or those listing the Seller or Maxtor as to secured party and the priority, applicable Obligor as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestdebtor.
(ki) Each Seller Purchaser Report and Daily Report (in each case if prepared by the Seller, Maxtor or any Selling Affiliate or any Affiliate of any thereof, or to the extent that information contained therein is supplied by the Seller, Maxtor or any Selling Affiliate or any Affiliate of any thereof), notice or other written item of information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Seller Seller, Maxtor or any Selling Affiliate to the Purchaser Agent, the Trustee or any Owner in each case 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, the Trustee or such Owner, as the case may be, at such time) as of the date so furnished, and as of such relevant date 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 make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(lj) The principal chief place of business and chief executive office of the Seller and the office where the Seller keeps its records concerning the Transferred Receivables Seller Assets are located at the address or addresses referred to specified in Section 5.01(b). The Seller has not changed its name during the two years prior 13.02 hereto (or at such other locations, notified to the date of this AgreementAgent and the Trustee in accordance with Section 5.01(f), in jurisdictions where all action required by Section 6.05 has been taken and completed).
(mk) The names and addresses of all the Lock-Lock Box Banks, together with the account numbers of the Lock-Lock Box Accounts of the Seller and the Selling Affiliates, respectively, at such Lock-Lock Box Banks, are specified in Exhibit B Schedule I hereto (as the same may be updated from time to time pursuant to Section 5.01(g)). The Lock-or at such other Lock Box Banks and/or with such other Lock Box Accounts are the only accounts into which Collections of Receivables are deposited or remitted, except as expressly permitted pursuant have been notified to the terms of Section 5.01(h) hereof.
(n) None of the Seller or any Originator is known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 and 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 sale of Transferred Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, Lock Box Agreements 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 executed in accordance with and to the extent required by generally accepted U.S. accounting principlesSection 6.06(b)).
(r1) The Neither the Seller is not, and is not controlled by, an “investment company” within the meaning nor any Affiliate (of the Investment Company Act of 1940, or is exempt from all provisions of such act.
type set forth in clause (si)(x) The receivables credit and collection policies and practices of the Originators attached hereto as Exhibit A are in effect as definition of the date of this Agreement. 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.
(tterm "Affiliate") 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 the applicable Originator has any direct or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, indirect ownership or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value, and each such sale referred to other financial interest in the foregoing clause (ii) shall not have been made for Agent, the Secondary Purchasers 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 CodeBank.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Maxtor Corp)
Representations and Warranties of the Seller. The Seller -------------------------------------------- represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized, validly existing and in good standing under the laws of Delaware, the jurisdiction of its organization and is duly qualified to do business, and is in good standing, in every jurisdiction all states where the nature of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunderownership or use of property requires such 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 's use of the proceeds of Purchases, (i) are within the Seller’s 's corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1i) the Seller’s organizational documents's Articles of Organization or Operating Agreement, (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 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 Transferred Receivables pursuant to this Agreement). This Agreement Ownership Document; and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has been duly executed 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 for the due execution, delivery and performance by the Seller of this Agreement, the Transaction Documents to which it is a party Ownership Document or any other document or instrument to be delivered by it thereunder hereunder except for (i) the filing of financing statements which are referred 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 thereinperfect 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, and each of the other Transaction Documents to be Ownership Document when delivered by the Seller pursuant hereto constitutes hereunder shall constitute, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)their respective terms.
(e) Sales made pursuant to this Agreement will constitute a valid saleThe balance sheet as of , transfer1999, and assignment the statements of --------- income and retained earnings and cash flows of the Transferred Receivables Seller for the year then ended, each as certified by the Seller's chief financial officer, copies of which have been furnished to the Purchaser, enforceable against creditors offairly present the financial condition of the Seller as of the date of such balance sheet and the results of operations for the respective periods covered by said statements of income and retained earnings. Since , and purchasers from1999, there has been no ---------- material adverse change in the financial condition or operations of the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gi) There is are no pending oractions, suits or proceedings pending, or to the knowledge of the Seller, Seller threatened, action, investigation against or proceeding affecting the Seller or any subsidiary, or the property of its subsidiaries before the Seller or of any subsidiary, in any court, or before any arbitrator of any kind, or before or by any governmental agency 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 Agreement or any transaction contemplated hereby or which seeks to enjoin or challenge any proposed use of the proceeds of the Purchases hereunder; and (iii) 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 may have a Material Adverse Effectdefaults are not material to the business or operations of the Seller.
(hg) No proceeds of any Purchase will be used (i) to acquire any equity security for a purpose which violates, or would be inconsistent with, regulation T, U or X promulgated by the Board of a class which is registered pursuant to Section 12 Governors of the Securities Exchange Act of 1934, Federal Reserve System from time to time or (ii) to acquire any security in any transaction which is subject to Section Sections 13 or and 14 of such the Securities Exchange Act or (iii) for any other purpose that violates applicable lawof 1934, including Regulation G or U of the Federal Reserve Boardas amended.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized The Receivables Pool is composed solely of Eligible Receivables, except for such Receivables as shall not, in any Seller Report or other written statement made by or on behalf the aggregate, constitute a material portion of the Seller Receivables Pool; and (whether as Collection Agent or otherwiseii) as an Eligible Receivable isupon each Purchase, as of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes will acquire a Purchase it shall acquire valid and perfected first priority ownership of interest in each Transferred Pool Receivable then existing or thereafter arising and in 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), Claims; and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office office, except such as may be those filed in favor of the Seller in accordance with Seller, the Initial Purchase Agreement, in favor of Purchaser and the Agent in accordance with this Agreement, or in connection with any Adverse Claim arising solely as the result of any action taken by Originator Agreement, the Purchaser. Nothing in this Section 4.01(j) shall constitute a representation or warranty by ▇▇▇▇▇▇ Agreement and the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security InterestCitibank Agreement.
(ki) Each Seller Investor Report (if prepared by the SellerSeller or Services, or to the extent that information contained therein is supplied by the SellerSeller or Services), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Seller 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 or will be 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 Purchaser, the Agent or such Owner, as the case may be, at such timeor 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.
(lj) The principal chief place of business and chief executive office of the Seller are located at , and the office -------------------------------------------- offices where the Seller keeps all its books, records concerning and documents evidencing Pool Receivables or the Transferred Receivables related Contracts are located at , or at other local offices within ---------------------------------------- the address or addresses referred to in Section 5.01(b)State of . The Seller has not changed its name during the two years prior to the date of this Agreement.-----------
(mk) The names and addresses of Pool Receivables are accounts receivable representing all the Lock-Box Banks, together with the account numbers or part of the Lock-Box Accounts at such Lock-Box Bankssale price of merchandise, 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 insurance 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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” services 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase AgreementSection 3(c)(5) 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under 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) The Originator Agreement is the only agreement pursuant to which the Seller purchases receivables from any of the Originators or any SPV and each of the Receivables sold hereunder has been purchased under the Originator Agreement. The Seller has given the Purchaser true, correct and complete copies of the Originator Agreement, which is in full force and effect, and there are no written or oral understandings which would vary, waive or otherwise modify the terms thereof except those which have been approved in writing by the Agent.
(n) The Seller has no subsidiaries and does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any other Person and has conducted no other business except for the execution and delivery of the Originator Agreement, this Agreement, the acquisition of the Pool Receivables and sales thereof contemplated thereunder and hereunder, and such other activities as are incidental to the foregoing.
(o) The Seller is operated as an entity separate from the Originators and each other member of the Parent Group and, towards such end, the Seller:
(i) maintains books and records of account (including financial records) which are separate from each other member of the Parent Group and maintains its assets in a manner which facilitates their identification and segregation from those of any other member of the Parent Group;
(ii) maintains its assets, funds and transactions separate from those of any member of the Parent Group, reflecting such assets and transactions in financial statements separate and distinct from those of such members, and evidencing such assets, funds and transactions by appropriate entries in the books and records referred to in clause (i) above, and providing for its own operating expenses and liabilities from its own assets and funds other than certain expenses and liabilities relating to basic corporate overhead which may be allocated between the Seller and the Parent Group;
(iii) conducts all intercompany transactions with all members of the Parent Group on an arm's length basis;
(iv) at all times enters into its contracts and otherwise holds itself out to the public under the Seller's own name as a legal entity separate and distinct from its Affiliates;
(v) holds such appropriate meetings or obtains such appropriate consents of its Board of Managers as are necessary to authorize all the Seller's actions required by law to be authorized by such Board of Managers, keeping minutes of such meetings and of meetings of its members and observing all other limited liability company formalities.
(p) The Seller has been adequately capitalized in light of its business and, on the date hereof, (i) is not "insolvent" (as such term is defined in the Bankruptcy Code), (ii) is able to pay its debts as they mature, and (iii) does not have unreasonably small capital for the business in which it is engaged.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants with and to the Issuer, the Indenture Trustee, the Servicer, the Securities Insurer and the Securityholders as followsof the Closing Date:
(a) The Seller is a corporation duly organized, validly existing existing, and in good standing under the laws of Delaware, the State of Nevada and has all licenses necessary to carry on its business as now being conducted and is duly licensed, qualified to do business, and is in good standing, standing in every jurisdiction where each Mortgaged Property State if the nature laws of its such state require licensing or qualification in order to conduct business requires it to be so qualified, unless the failure to so qualify would not 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 type conducted by the Seller or and perform its obligations as Seller hereunder; the Collection Agent Seller has the power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder.
(b) The in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Seller and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action of the Seller; this Agreement evidences the valid, binding and enforceable obligation of the Seller; and all requisite action has been taken by the Seller to make this Agreement valid, binding and enforceable upon the Seller in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium and other, similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equity;
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which 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 be delivered by which it hereunderis a party, including have been duly taken, given or obtained, as the Seller’s sale of Receivables hereunder 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 Seller’s use time within which any appeal
(c) The consummation of the proceeds of Purchases, transactions contemplated by this Agreement will not result in (i) are within the breach of any terms or provisions of the Articles of Incorporation or Bylaws of the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate actionthe breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which the Seller, or its property is subject, or (iii) do not contravene (1) the Seller’s organizational documents, (2) violation of any law, rule rule, regulation, order, judgment or regulation applicable decree to the Seller, (3) any contractual restriction binding on or affecting which the Seller or its respective property is subject;
(d) Neither this Agreement nor the Prospectus nor any statement, report or other document prepared by the Seller and furnished or to be furnished 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 herein or therein not misleading;
(4e) There is no action, suit, proceeding or investigation pending or, to the best of the Seller's knowledge, threatened against the Seller which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Seller or in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or in any material liability on the part of the Seller or which would draw into question the validity of this Agreement or the Home Loans or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein, or which would be likely to impair materially the ability of the Seller to perform under the terms of this Agreement;
(f) The Seller is not in default with respect to any order or decree of any court or any order, writregulation or demand of any federal, judgmentstate, awardmunicipal or other governmental agency, injunction which default might have consequences that would materially and adversely affect the condition (financial or decree binding on otherwise) or affecting operations of the Seller or its propertyproperties 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 (iv) do not result in or require marketable title to each Initial Home Loan and such other items comprising the creation corpus of the Trust free and clear of any lien, mortgage, pledge, charge, security interest or other charge or encumbrance upon or with respect encumbrance;
(h) As of any Subsequent Transfer Date, the Issuer will have good and marketable title to any of its properties (except for each Subsequent Home Loan transferred on such date and such other items comprising the transfer corpus of the Seller’s Trust free and clear of any lien, mortgage, pledge, charge, security interest in the Transferred Receivables pursuant to this Agreement). This Agreement or other encumbrance; and
(i) The transfer, assignment and each conveyance of the other Transaction Documents to be delivered Home Loans, the Debt Instruments and the Mortgages 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables or any Subsequent Transfer Agreement are not subject to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest bulk transfer laws or any similar statutory provisions in effect in any 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 lawjurisdiction.
(j) Each Receivable characterized in The Seller shall provide each Rating Agency and the Securities Insurer with notice and a copy of any Seller Report or other written statement made by or on behalf amendment to the Articles of Incorporation of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, as of promptly after the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestfiling thereof.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Investment Corp)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, as presently conducted and enter into and perform its obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; neither the execution and delivery of this Agreement, nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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, Seller and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery Depositor and performance by the Seller of the Transaction Documents to which it is constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (terms, except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans 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 Transfer Agreement were 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 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 Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear warranty (except in the case of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller of the representations made by it pursuant to Sections 1.04(b)(xiii) through (xvii)), shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the PurchaserSeller pursuant to Sections 1.04(b)(xiii) through (xvii), ) shall be direct obligations of the Seller. The Depositor acknowledges and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, agrees that the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor representations and warranties of the Seller in accordance with this Section 1.04(b) (except in the Initial Purchase Agreementcase of those representations and warranties made pursuant to Sections 1.04(b)(xiii) through (xvii)) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the PurchaserTransferor in the Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xvii)) 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 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, as to each, that:
(i) The information set forth with respect to the priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 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 ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. 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) In the case of approximately 97.28% and 2.72% of the Mortgage Loans (by Scheduled Principal Balance as of its date the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (except as otherwise disclosed to including all improvements on the Purchaser at such timeMortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) 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, (3) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date so furnished.
(l) The principal place of business recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located 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 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 (4) 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 97.28% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date). The Seller , 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 not changed its name during full right to sell and assign the two years same to the Trustee;
(vi) Immediately prior to the date of this Agreement.
(m) The names transfer and addresses of all the Lock-Box Banks, together with the account numbers assignment of the Lock-Box Accounts at such Lock-Box BanksMortgage Loans to the Depositor, are specified in Exhibit B (as the same may be updated from time 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 time pursuant transfer and sell each Mortgage Loan to Section 5.01(g)). The Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remittedDepositor free and clear, except as expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinderno prior holder of the related Mortgage, delay including the Seller, has done, by act or defraud creditors omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filed’s knowledge, (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 no foreclosure action is being contested in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).premises were intended;
(rix) The Seller 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 that is notsupervised 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 will have a CLTV of 100% or less as of the Closing Date;
(xii) Each Mortgage Loan is not controlled by, an a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company Code and Treas. Reg. §1.860G-2;
(xiii) 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 predatory and abusive lending laws;
(xiv) 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 Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 1940, or 2003 (N.J.S.A. 46:10B-22 et seq.); no Mortgage Loan 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. 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 “High-Cost Home Loan” subject to the capital of the Seller by the applicable Originator or New Mexico Home Loan Protection Act (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Finance America Mortgage Loan Trust 2004-1)
Representations and Warranties of the Seller. The Seller hereby represents and warrants as followsto GridSolar that:
(a) The Seller is a corporation [corporation, organization, individual …], duly organized, validly existing and in good standing under the laws of Delaware, the State of ________ and is duly qualified to do business, and business in all jurisdictions where such qualification is in good standing, in every jurisdiction required or where the nature of its business requires such qualification is necessary for it to be so qualified, unless the failure to so qualify would not 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 perform their respective 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 corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) or other organizational action and do not and will not contravene (1) the Seller’s its organizational documentsdocuments or conflict with, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction 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 a breach of, or require the creation entitle Seller (with due notice or lapse of any lientime or both) to terminate, security interest accelerate 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 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 withdeclare a default under, any governmental authority agreement or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents 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 other document to be delivered violation by it thereunder except for of any law, any order of any court or other agency of government, rule or regulation applicable to it. Seller is not a party to, subject to or bound by, any judgment, injunction or decree of any court or other governmental entity which may restrict or interfere with the filing performance of financing statements which are referred to thereinthis Agreement by it.
(dc) This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto constitutes is the legal, valid and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its terms (terms, except as enforceability such enforcement may be limited by applicable subject to bankruptcy, insolvency, reorganization reorganization, fraudulent conveyance, avoidance, preferential transfer, moratorium or other similar laws affecting the enforcement of now or hereafter in effect relating to creditors’ ' rights generally and by general principles of equity, equity that may limit the availability of equitable remedies and contractual obligations generally (regardless of whether the issue of enforceability is considered in an action a proceeding in equity or at law 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 equity)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 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) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no 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 the Seller, threatenedthreatened against or affecting Seller at law or in equity, actionbefore any federal, investigation state, municipal or proceeding affecting the Seller 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 its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effectthe transactions contemplated hereby.
(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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Capacity Purchase and Sale Agreement
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, together event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Related Security, is owned applicable Transfer Agreement and (immediately prior to its sale hereunderii) by a representation or warranty of 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 Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinunder this Agreement, the Related Security sole right or Collections with respect thereto is on file in remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any recording office except such as may be filed in favor applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with the Initial Purchase Agreementthis Section 1.04(b) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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. 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants to the Issuer, the Depositor, the Owner Trustee, the Indenture Trustee, the Note Insurer and the Owners that as followsof the Closing Date:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, governing its creation and is duly qualified to do business, existence and is in good standing, standing in every 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, unless conducted and to enter into and discharge its obligations under this Agreement and the failure other Operative Documents to so qualify would not have which it is 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 perform their respective obligations hereunderparty.
(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 corporate powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary corporate action, (iii) do action on the part of the Seller and will not contravene (1) violate the Seller’s organizational documents's Articles of Incorporation and Bylaws 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 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 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 Sellerproperties.
(c) No authorization or approval or This Agreement and the other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Operative Documents to which it the Seller is a party or any other document to be delivered party, assuming due authorization, execution and delivery by it thereunder 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 parties hereto and thereto, each constitutes the legala valid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its the terms (hereof and thereof, except as enforceability the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.,
Appears in 1 contract
Sources: Sale and Servicing Agreement (Imc Home Equity Loan Owner Trust 1998-4)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not 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 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 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 corporate 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 Transferred 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 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, in favor of the Seller in accordance with the Initial 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 The Seller or any Originator is not known by or uses and does not use any registered 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereofCompany, shall be required to be bound by a confidentiality agreement reasonably acceptable to the applicable OriginatorSeller and IR Company), except for those programs licensed by the Seller from Persons which are not affiliated with the applicable Originator Seller 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 sale 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.
(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 Seller attached hereto as Exhibit A are in effect as of the date of this Agreement. 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 ReceivableReceivable acquired by the Seller from IR Company, the Seller shall either (i) shall have received each acquired such Transferred Receivable acquired by it as a contribution to the capital of the Seller by the applicable Originator IR Company or (ii) shall have purchased such Transferred Receivable from the applicable Originator IR Company in exchange for payment (made by the Seller to the applicable Originator IR Company in accordance with the provisions of the Initial 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 transfer referred to in the foregoing clause (ii) shall not have been made for or on account of an antecedent debt owed by any Originator IR Company to the Seller and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Secondary Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Representations and Warranties of the Seller. 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, organized and validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, the United States of America and is in good standing, compliance with the laws of each state in every jurisdiction where which any Mortgaged Property is located to the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, each Mortgage Loan;
(ii) The Seller has the collectibility power and authority to make, execute, deliver and perform its obligations under this Agreement and each Subsequent Transfer Agreement to which it is a party and all of the Transferred Receivablestransactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(iii) 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;
(iiiiv) 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 Collection Agent to perform their respective obligations hereunder.
(b) The executionvalidity or enforceability of, 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 corporate 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Basic Documents to which it is a party or any other document to be delivered (C) the transactions contemplated by it thereunder except for the filing of financing statements which are referred to therein.this Agreement;
(dvi) This Agreement and each of the other Transaction Documents Subsequent Transfer Agreement to be delivered by the Seller pursuant hereto 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 (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization 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 the enforcement of creditors’ ' rights generally and by general principles of equity, equity (whether considered in an a proceeding or action in equity or at law or equitylaw).;
(exi) Sales made pursuant No Mortgage Loan is subject to this Agreement the Home Ownership and Equity Protection Act of 1994. Furthermore, no Mortgage Loan either currently has, or in the future will constitute a valid salehave, transfer, and assignment single premium life provisions as part of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.Loan Agreement;
(fxii) [Intentionally omitted.]Each Initial Mortgage Loan has an associated CLTV of no higher than 100%;
(gxiii) There is no proceeding pending or, to or threatened for the knowledge total or partial condemnation of the SellerMortgaged Property, threatened, action, investigation or nor is such a proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effect.currently occurring;
(hxiv) No proceeds The related Loan Agreement is not and has not been secured by any collateral, pledged account or other security except the lien of any Purchase the 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 documents and instruments specified to be used included therein;
(xvi) With respect to each Mortgage Loan that is not a first mortgage loan, either (i) to acquire any equity security of a class which no consent for the Mortgage Loan is registered pursuant to Section 12 required by the holder or holders of the Securities Exchange Act of 1934related prior lien, (ii) to acquire any security such consent has been obtained and is contained in any transaction which is subject to Section 13 or 14 of such Act the related Mortgage File or (iii) no consent for any other purpose that violates applicable the Mortgage Loan was required by relevant law, including Regulation G or U ;
(xvii) The Mortgaged Property is located in the state identified in the Mortgage Loan Schedule and consists of a single parcel of real property with a residential dwelling erected thereon;
(xviii) The related Mortgage contains customary and enforceable (subject to clause (x)) provisions which render the rights and remedies of the Federal Reserve Board.
holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including, (i) No transaction contemplated hereby requires compliance in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. There is no 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 of the Seller's knowledge, there is no default, breach, violation or 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 bulk sales act 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 2.25%;
(xxii) To the best of the Seller's knowledge, there are no mechanics' or similar law.liens or claims which have been filed for work, labor or material affecting the related Mortgaged Property which are, or may be liens prior or equal to the lien of the related Mortgage, except liens which are fully insured against by a title insurance policy referred to in clause (xxiv) below;
(jxxiii) As of the Cut-Off Date or 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;
(xxiv) A title search or other assurance of title customary in the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each Receivable characterized in any Seller Report or other written statement made by or on behalf original Mortgage was recorded, and all subsequent assignments of the Seller 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 to perfect the lien thereof (whether as Collection Agent or otherwise) as an Eligible Receivable is, as are in the process of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller being recorded in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.local law);
(kxxvi) 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during transferred the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sale of Transferred Receivables by 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 Seller.Securityholders was utilized in selecting the Mortgage Loans;
(qxxviii) 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;
(ixxx) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returnsNo instrument of release or waiver has been executed in connection with the Mortgage Loans, and no Mortgagor has been released, in whole or in part, from its obligations in connection therewith;
(iiixxxi) paid 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 made adequate provision for 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 of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested by application in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).Rapid Amortization Period commences;
(rxxxiv) The Seller is not, and is not controlled by, an “investment company” within the meaning None of the Investment Company Act of 1940Loan Agreements that constitute or evidence the Mortgage Loans has any marks or notations indicating that they have been pledged, assigned or is exempt from all provisions of such act.otherwise conveyed to any Person other than the Purchaser;
(sxxxv) The receivables credit and collection policies and practices of the Originators No Mortgage Loan is a "high cost loan" or "covered loan" as applicable (as such terms are defined in Standard & Poor's LEVELS(R) Glossary, Version 5.6 Revised, Appendix E, attached hereto as Exhibit A are in effect as 6) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act";
(xxxvi) Reserved;
(xxxvii) As of the date Cut-Off Date, the minimum CLTV of this Agreement. Since a Mortgage Loan is 4.00%, the date highest CLTV of this Agreementa Mortgage Loan is 100.00% and the weighted average CLTV for the Mortgage Loans is approximately 77.34%;
(xxxviii) As of the Cut-Off Date, there no more than approximately 16.00% 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(R);
(xxxix) As of the Cut-Off Date, no material changes more than approximately 7.00% 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 Loan Rates on the Mortgage Loans range between 1.750% per annum and 8.750% per annum. As of the Cut-Off Date, the weighted average Loan Rate for the Mortgage Loans is approximately 4.094% per annum;
(xli) As of the Cut-Off Date, no more than approximately 20.44%, 20.39%, 13.98%, 12.14% and 10.37% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties located in the Credit states of New Jersey, Florida, Pennsylvania, North Carolina and Collection Policy other than in accordance with this Agreement.Virginia, respectively;
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(vA) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act Mortgaged Property consists of 1940a single parcel of real property with a single family or multi-family residence erected thereon, as amended.o
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Asset Sec Series 2004 - HE1)
Representations and Warranties of the Seller. The Seller represents and warrants as followsto the Purchaser that:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, 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, unless the failure to so qualify would not 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 perform their respective obligations hereunder.
(b) The Seller has authorized 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 corporate 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 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 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 bytransactions contemplated hereby, and no notice other action will be necessary to or filing with, any governmental authority or regulatory body is required for the due authorize such execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder except for the filing of financing statements which are referred to therein.
(d) performance. This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto constitutes the legal, a 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 or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(ec) Sales made pursuant to this Agreement will constitute No consent, approval, authorization or order of any court, governmental agency or body or arbitrator (each a valid sale“Governmental Authority”) having jurisdiction over the Seller is required for the execution, transferdelivery or performance by the Seller of its obligations hereunder, and assignment including without limitation the sale of the Transferred Receivables to the PurchaserPurchased Shares, enforceable against creditors ofexcept for such consents, and purchasers fromapprovals, the Seller. The Seller shall authorizations or orders as have no remaining property interest in any Transferred Receivablealready been obtained or granted.
(fd) [Intentionally omitted.]
(g) There is no pending or, Except to the knowledge extent excused by or unenforceable as a result of the Bankruptcy Case (as defined below), neither the sale of the Purchased Shares nor the performance of the 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 the Seller, threatened(ii) any decree, actionjudgment, investigation order, law, treaty, rule, regulation or proceeding affecting determination of any Governmental Authority (“Laws”) having jurisdiction over the Seller or any of its subsidiaries before assets or properties or (iii) the terms of any courtmaterial agreement to which the Seller is a party or to which any of the Seller’s properties is subject, governmental agency except in each case as would not reasonably be expected to have the effect of preventing, materially delaying, making illegal or arbitrator otherwise materially interfering with any of the transactions contemplated by this Agreement.
(e) The Seller has good and marketable title to the Purchased Shares, and good and marketable title will be transferred to the Purchaser free of any security interest, lien, claim or other encumbrance or any restriction on voting or transfer, other than those imposed by the Securities Act (collectively, “Encumbrances”).
(f) The sale of the Purchased Shares by the Seller is not part of a plan or scheme to evade the registration requirements of the Securities Act. Neither the Seller nor any Person (as defined below) acting on behalf of the Seller has offered or sold any of the Purchased Shares by any form of general solicitation or general advertising.
(g) In making its decision to sell the Purchased Shares, the Seller represents that it has not relied on any statements or other information provided by any Person (including without limitation the Purchaser) (other than the representations and warranties of the Purchaser set forth in Section 4). In particular, and without prejudice to the generality of the foregoing, Seller represents that it is aware that the Purchaser is the founder and CEO of the Company and the Purchaser and/or the Company possess material nonpublic information regarding the Company not known to Seller that may impact the value of the Initial Purchased Shares or the Subsequent Purchased Shares, and that neither the Purchaser nor the Company is disclosing any such information to the Seller. The Seller understands, based on its experience, the disadvantage to which may the Seller is subject due to the disparity of information between the Seller, on the one hand, and the Purchaser and the Company, on the other hand. Notwithstanding such disparity, the Seller has deemed it appropriate to enter into this Agreement and to consummate the transactions contemplated hereby and the Seller agrees that none of the Purchaser, the Company, or their respective affiliates, principals, stockholders, partners, employees and agents shall have any liability to the Seller, whatsoever due to or in connection with the Purchaser’s or the Company’s use or non-disclosure of such information or otherwise as a Material Adverse Effectresult of the transactions contemplated hereby, and the Seller hereby irrevocably waives any claim that it might have based on the failure of the Purchaser or the Company to disclose the Information.
(h) No proceeds Except as expressly set forth in this Section 3, neither the Seller nor any of its directors, members, officers, employees or representatives nor any Purchase will be used (i) to acquire other Person makes or has made any equity security of a class which is registered pursuant to Section 12 representation or warranty, express or implied, at law or in equity, in respect 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinSeller, the Related Security Purchased Shares or Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with transactions contemplated by this 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 warranty by and the Seller as to the priority, as against disclaims any other secured creditors of the relevant Obligorrepresentations or warranties, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared whether made 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by other Person, in each case notwithstanding the delivery or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sale of Transferred Receivables by the Seller disclosure to the Purchaser pursuant to this Agreement, and all or any other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay Person of any documentation 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 information 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)foregoing.
(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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sorrento Therapeutics, Inc.)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, the State of Delaware 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, unless except where the failure to so qualify would not 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 perform their respective obligations hereunderSeller.
(b) 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 transactions contemplated hereby and thereby, and the Seller’s 's use of the proceeds of Purchases, (i) are within the Seller’s 's corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1i) the Seller’s organizational documents, 's charter or by-laws or (2ii) any law, rule law or regulation applicable to the Seller, (3) any contractual restriction 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 material properties, other than as a result of the Seller’s interest in the Transferred Receivables pursuant to transactions contemplated by 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party this Agreement or any other document or instrument to be delivered by it thereunder except hereunder EXCEPT for the filing of financing statements which are the UCC Financing Statements referred to thereinin 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 is, and each of the other Transaction Documents to be Certificate when delivered by the Seller pursuant hereto constitutes hereunder will be, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as to the extent that the enforceability may be thereof is limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and general by equitable principles (regardless of equity, whether considered enforcement is sought in an action equity or at law or equitylaw).
(ei) Sales made pursuant to this Agreement will constitute a valid saleThe Consolidated balance sheet of the Seller and its Subsidiaries as at December 31, transfer1992, and assignment the related Consolidated statement of income and cash flows of the Transferred Receivables Seller and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young, independent public accountants, copies of which have been furnished to the PurchaserAgent, enforceable against creditors offairly 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 purchasers from(ii) since December 31, the Seller. The Seller shall have 1992, there has been no remaining property interest material adverse change in any Transferred Receivablesuch condition or operations.
(f) [Intentionally omitted.]
(g) There is are no pending oractions, suits or proceedings pending, or to the knowledge of the Seller, Seller threatened, action, investigation against or proceeding affecting the Seller or any Subsidiary, or the property of its subsidiaries before the Seller or of any subsidiary, in any court, or before any arbitrator of any kind, or before or by any governmental agency 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; neither the Seller nor any Subsidiary 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 may have a Material Adverse Effectdefaults are not material to the business or operations of the Seller or any Subsidiary.
(hg) No proceeds of any Purchase or reinvestment will be used (i) by the Seller to acquire any equity security (other than the Common Stock of the Seller to the extent permitted under Section 5.02(g) of the Credit Agreement) of a class which that 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.
(h) Each Pool Receivable is (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, is Contract related thereto owned (immediately prior to its sale hereunder) by the Seller 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 the Purchaser). When the Purchaser makes Owner making such Purchase or 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 Transferred Pool Receivable then existing or thereafter arising and in the Related Security and Collections 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 the Purchaser), provided hereunder; and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, Contract or any interest therein, Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Seller in accordance with the Initial Purchase AgreementCNAI, in favor of Purchaser as Agent, in accordance with this 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(ki) 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 Agent or any Owner 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 such Owner, as the case may be, at such time) as of the date so furnished, and no such document contains 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.
(lj) The principal place of business and chief executive office of the Seller is located at the address of the Seller referred to in Section 11.02 hereof and the office chief place of business and the offices where the Seller keeps all its books, records concerning and documents evidencing Pool Receivables or the Transferred Receivables related Contracts are located at the address specified in Schedule IV hereto (or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior at such other locations, notified to the date of this AgreementAgent in accordance with Section 5.01(f), in jurisdictions where all action required by Section 6.05 has been taken and completed).
(mk) 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 specified in Exhibit B Schedule I hereto (as the same may be updated from time to time pursuant to Section 5.01(g)). The or at such other Lock-Box Banks and/or with such other Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remitted, except as expressly permitted pursuant have been notified to the terms of Section 5.01(h) hereof.
(n) None of the Seller or any Originator is known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 principlesSection 5.03(d)).
(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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Trade Receivables Purchase and Sale Agreement (Geon Co)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, together event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Related Security, is owned applicable Transfer Agreement and (immediately prior to its sale hereunderii) by a representation or warranty of 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 Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinunder this Agreement, the Related Security sole right or Collections with respect thereto is on file in remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any recording office except such as may be filed in favor applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with the Initial Purchase Agreementthis Section 1.04(b) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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, 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(miv) The names Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and addresses of all the Lock-Box Banks, together with Mortgaged Property has not been released from the account numbers lien of the LockMortgage, 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 100% of the Mortgage Loans, (by Scheduled Principal Balance as of the Cut-Box Accounts at such Lock-Box Banksoff Date) the related Mortgage evidences a valid, are specified in Exhibit B subsisting, enforceable and perfected first lien on the related Mortgaged Property (as including all improvements on the same may be updated from time to time pursuant to Section 5.01(g)Mortgaged Property). The Locklien 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. All of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-Box Accounts are off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the only accounts into which Collections 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 Receivables are deposited or remittedthe 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 expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinderno prior holder of the related Mortgage, delay including the Seller, has done, by act or defraud creditors omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filed’s knowledge, (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 no foreclosure action is being contested in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).premises were intended;
(rix) The Seller 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 notsupervised 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 not controlled by, an a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company Act of 1940, or is exempt from all provisions of such act.Code and Treas. Reg. §1.860G-2;
(sxiii) No Mortgage Loan was originated in the State of Georgia after October 1, 2002;
(xiv) In the case of the Pool 2 Mortgage Loans, no Mortgage Loan imposes a Prepayment Charge for a term in excess of five years;
(xv) In the case of a Pool 1 Mortgage Loans, no Mortgage Loan imposes a Prepayment Charge for a term in excess of three years;
(xvi) The receivables Servicers for each Mortgage Loan will accurately and fully report its borrower credit and collection policies and practices of the Originators attached hereto as Exhibit A are files to all three credit repositories in effect as of the date of this Agreement. 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.a timely manner;
(t) No event or circumstance has occurred since the date of this Agreement that has a Material Adverse Effect.
(uxvii) With respect to each Transferred Receivablethe Pool 1 Mortgage Loans, the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution has no reason to believe that any borrower will default under the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase pricerelated Mortgage Loan, or that foreclosure proceedings will be commenced with respect to any Mortgage Loan, within the six months immediately following the Closing Date;
(xviii) In the case of a combination thereof in an amount which constitutes fair consideration and reasonably equivalent valuePool 1 Mortgage Loans, and the outstanding Scheduled Principal Balance of each such sale referred to Mortgage Loan does not exceed the maximum original loan amount limitations set forth in the foregoing clause (ii) shall not have been made for ▇▇▇▇▇▇ ▇▇▇ Seller/Servicer Guide with respect to one-to-four family residential mortgage loans, whether first lien 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940subordinate lien mortgage loans, as amended.applicable;
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as followsof the Closing Date:
(ai) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where perform its obligations under this Agreement and the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, Assignment and Assumption Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement has been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (respective terms, except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Transferred Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. 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 a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller 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), 1.04(b)(xx) and 1.04(b)(xxi) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the PurchaserSeller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(xxi) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(xii), in favor of Purchaser in accordance with this Agreement1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi) are applicable only to facts, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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 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, 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 priority, as against any other secured creditors Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorTransferred Mortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Transferred Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 timeMortgagor’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 so furnished.
(l) The principal place of business recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located 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 specifically referred to in Section 5.01(b)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. The Seller 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 not changed its name during full right to sell and assign the two years same to the Trustee;
(vi) Immediately prior to the date of this Agreement.
(m) The names transfer and addresses of all the Lock-Box Banks, together with the account numbers assignment of the Lock-Box Accounts at such Lock-Box BanksTransferred Mortgage Loans to the Depositor, are specified in Exhibit B (as the same may be updated from time 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 time pursuant transfer and sell each Transferred Mortgage Loan to Section 5.01(g)). The Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remittedDepositor free and clear, except as expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such programs (it being understood thatmortgagee Title Insurance Policy and no prior holder of the related Mortgage, howeverincluding the Seller, has done, by act or omission, anything that would impair the Collection 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 coverage of such license either mortgagee Title Insurance Policy;
(iviii) require To the consent best of the licensor for Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any sublicensing thereof or (ii) prohibit any such sublicensingTransferred Mortgage Loan.
(pix) The sale 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 Transferred Receivables Mortgage Loan or the 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 (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;
(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 Seller to the Purchaser Secretary of Housing and Urban Development pursuant to this AgreementSections 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 other transactions between the Seller applicable predatory and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors abusive lending laws;
(xiii) As of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filedClosing Date, (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 each Transferred Mortgage Loan 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 a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company Act of 1940, 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 exempt from all provisions of such act.a qualified mortgage for a temporary period);
(sxiv) The receivables credit and collection policies and practices As of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Since the date of this AgreementClosing Date, 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 Retained Interest, no Transferred Receivable, the Seller Mortgage Loan provides for interest other than at either (i) shall have received each Transferred Receivable acquired by it as a contribution to single fixed rate in effect throughout the capital term of the Seller by the applicable Originator Transferred Mortgage Loan or (ii) shall have purchased a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Receivable from the Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable Originator in exchange 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 payment (made by the Seller residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the applicable Originator in accordance with the provisions New Jersey Home Ownership Security Act of the Initial Purchase Agreement) of cash, deferred purchase price, or 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value, and each such sale referred to in the foregoing clause (ii) shall not have been made for or on account of an antecedent debt owed by any Originator “High-Cost Home Loan” subject to the Seller and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code.
New Mexico Home Loan Protection Act (v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-14n)
Representations and Warranties of the Seller. The Seller represents hereby makes the following representations and warrants warranties to the Company as followsof the date hereof:
(a) The Seller is a corporation duly organized, validly existing has full power and in good standing under the laws of Delaware, and is duly qualified authority to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunder.
(b) The execution, delivery and performance by the Seller of enter into this Purchase Agreement and to consummate 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 corporate 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 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 Transferred Receivables pursuant to this Agreement)transactions contemplated hereby. This Purchase Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has been duly and validly executed and delivered by the Seller.
(c) No authorization or approval or other action by, Seller and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 valid, and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms (terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization moratorium, reorganization, or similar laws affecting the enforcement of from time to time in effect that affect creditors’ rights generally generally, and general principles by legal and equitable limitations on the availability of equityspecific remedies.
(b) The execution, delivery, and performance by the Seller of this Purchase Agreement and consummation by the Seller of the transactions contemplated hereby do not and will not: (i) violate any decree or judgment of any court or other governmental authority applicable to or binding on the Seller; (ii) violate any provision of any federal or state statute, rule, or regulation that is, to the Seller’s knowledge, applicable to the Seller; or (iii) violate any contract to which the Seller or any of his assets or properties are bound, or conflict with, or constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration, or cancellation of, any agreement, indenture, or instrument to which the Seller is a party. No consent or approval of, or filing with, any governmental authority or other person not a party hereto is required for the execution, delivery, and performance by the Seller of this Purchase Agreement or the consummation of the transactions contemplated hereby.
(c) With respect to the transactions contemplated hereby, (i) the Seller is the sole record and beneficial owner of the shares of Purchased Securities, free and clear of any liens, charges, claims, restrictions, or encumbrances; (ii) the shares of Purchased Stock are not and will not be as of the Closing Date subject to any contractual transfer restriction; and (iii) upon the transfer of the shares of Purchased Stock to the Company, subject only to the Company’s actions in respect thereof, the Company shall, then and there, be able to return all of the shares of Purchased Stock to the Company’s treasury for cancellation.
(d) The Seller (i) is a sophisticated person with respect to the sale of the shares of Purchased Stock; (ii) as an officer and director of the Company has adequate information concerning the business and financial condition of the Company to make an informed decision regarding the sale of the shares of Purchased Stock; and (iii) has independently, and based on such information as the Seller has deemed appropriate, both in the context of his status as an officer and director of the Company and utilizing an independent, third-party valuation that he co-commissioned, made his own analysis and decision to enter into this Purchase Agreement, except that the Seller has relied upon the Company’s express representations, warranties, and covenants in this Purchase Agreement. The Seller acknowledges that the Company has not given the Seller any investment advice, credit information, or opinion on the value of the shares of Preferred Stock or whether considered in an action at law or equity)the sale thereof is prudent.
(e) Sales made pursuant to There are no outstanding rights, options, subscriptions, or commitments, other than this Agreement will constitute a valid salePurchase Agreement, transfer, and assignment of obligating the Transferred Receivables Seller with respect to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivableshares of Purchased Stock.
(f) [Intentionally omittedThe Seller has not taken any action that would give rise to any claim by any person for brokerage commissions, finder’s fees, or similar payments relating to this Purchase Agreement or the transactions contemplated hereby.]
(g) There is no No proceedings relating to the shares of Purchased Stock are pending or, to the knowledge of the Seller, threatened, action, investigation or proceeding affecting the Seller or any of its subsidiaries threatened 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with this Agreementarbitrator, or in connection with any Adverse Claim arising solely as administrative or governmental body that would adversely affect the result Seller’s right to transfer the shares of any action taken by the Purchaser. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as Purchased Stock to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security InterestCompany.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Terra Tech Corp.)
Representations and Warranties of the Seller. The Seller represents and warrants to the Company as follows:
(a) The Seller is a corporation duly organized, validly existing and is in good standing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every the jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunderorganization.
(b) Seller has full legal capacity, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution, execution and 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 corporate powers, (ii) transactions contemplated hereby by Seller have been duly and validly authorized by all necessary corporate action, (iii) do not contravene (1) action on the Seller’s organizational documents, (2) any law, rule or regulation applicable to the part of Seller, (3) any contractual restriction binding and no other proceedings on the part of Seller are necessary to authorize this Agreement or affecting to consummate 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 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 Sellertransactions contemplated hereby.
(c) No authorization or approval or other action by, This Agreement has been duly and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery validly executed and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder except for the filing Seller and constitutes a valid and binding agreement of financing statements which are referred to thereinSeller, enforceable against Seller in accordance with its terms.
(d) This Agreement Seller owns of record the Purchase Option and each is assigning it to the Company free and clear of all “adverse claims” (as such term is defined in Section 8-102(a)(1) of the other Transaction Documents to be delivered by the Seller pursuant hereto constitutes the legal, valid and binding obligation Uniform Commercial Code of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement State of creditors’ rights generally and general principles of equity, whether considered in an action at law or equityNew York).
(e) Sales made The execution and delivery of this Agreement by Seller does not, and the performance of the terms of this Agreement by Seller will not, (i) require Seller to obtain the consent or approval of, or make any filing with or notification to, any governmental or regulatory authority, domestic or foreign; (ii) conflict with or violate the organizational documents of Seller; (iii) require the consent or approval of any other person pursuant to this Agreement will constitute any agreement, obligation or instrument binding on Seller or its properties and assets; (iv) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable to Seller or by which any property or asset of Seller is bound; or (v) violate any other agreement to which Seller is a valid saleparty, transferincluding, and assignment of the Transferred Receivables to the Purchaserwithout limitation, enforceable against creditors ofany voting agreement, and purchasers fromstockholders agreement, the Seller. The Seller shall have no remaining property interest in any Transferred Receivableirrevocable proxy, or voting trust.
(f) [Intentionally omittedSeller acknowledges that (i) the Company may have possession of material, non-public information concerning the Company and its securities (collectively, the “Excluded Information”) and the Company is not sharing the Excluded Information with Seller; (ii) Seller does not possess or have access to the Excluded Information, and, as a consequence, there may exist a disparity of information between the Company and the Seller with respect to the Company and its securities, including the Purchase Option; (iii) the Excluded Information could be indicative of a value of the Purchase Option that is higher than the Purchase Price reflected in the sale or could otherwise be adverse to the Seller; and (iv) the Excluded Information may be material to Seller’s decision to sell the Purchase Option.]
(g) There is Seller has not requested the Excluded Information and agrees that the Company shall not be obligated to disclose any Excluded Information to the Seller and that the Company shall have no pending orliability with respect to any non-disclosure of the Excluded Information. As a condition to the Company’s agreement to buy the Purchase Option, to the knowledge fullest extent permitted by law, the Seller hereby releases and waives any and all claims, causes of action, actions, proceedings, suits, judgments, liens and executions, claims and causes of action, whether known or unknown, now or hereafter arising against the Company, based upon or relating to such non-disclosure or the Seller’s failure to review the Excluded Information and further covenants not to ▇▇▇ the Company for any loss, damage or liability arising from or relating to the sale 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 EffectPurchase Option.
(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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 is a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible assetqualified institutional buyer” as defined in Rule 3a-7 promulgated 144A under the Investment Company Securities Act of 19401933, as amended, and (ii) has not relied upon the Company for any investigation into, assessment of, or evaluation with respect to the Purchase Option, the Company and/or the transactions contemplated hereby. The Seller further acknowledges that the Company has not made any representation or warranty whatsoever with respect to the business, condition (financial or otherwise), properties, prospects, creditworthiness, status or affairs of the Company or with respect to the value, terms or enforceability of the Purchase Option.
Appears in 1 contract
Sources: Unit Purchase Option Repurchase Agreement (Highbury Financial Inc)
Representations and Warranties of the Seller. The Seller represents represents, warrants and warrants covenants to the Initial Purchaser and to any subsequent Purchaser that as followsof each Closing Date or as of such date specifically provided herein:
(a) The Seller is a Delaware corporation duly organized, validly existing and in good standing under the laws of Delawarethe jurisdiction of its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly licensed and qualified to do business, transact business in and is in good standingstanding under the laws of each state in which any Mortgaged Property is located or is otherwise exempt under applicable law from such licensing or qualification or is otherwise not required under applicable law to effect such licensing or qualification and no demand for such licensing or qualification has been made upon the Seller by any such state, and in every jurisdiction where any event the nature Seller is in compliance with the laws of any such state to the extent necessary to ensure the enforceability of each Mortgage Loan and the servicing of the Mortgage Loans in accordance with the terms of this Agreement. No licenses or approvals obtained by the Seller have been suspended or revoked by any court, administrative agency, arbitrator or governmental body and no proceedings are pending which might result in such suspension or revocation;
(b) The Seller has the full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement, the Interim Servicing Agreement, the related Confirmation Letter and the related Assignment and Conveyance and to conduct its business requires as presently conducted; the Seller has duly authorized the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, the Interim Servicing Agreement, the related Confirmation Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, the Interim Servicing Agreement, the related Confirmation Letter, the related Assignment and Conveyance and each Assignment of Mortgage to the Purchaser and any agreements contemplated hereby, constitute the legal, valid and binding obligations of the Seller, enforceable against it in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization and similar laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to be so qualifiedmake this Agreement, unless the failure Interim Servicing Agreement, the related Confirmation Letter, the related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(c) None of the execution and delivery of this Agreement, the Interim Servicing Agreement, the related Confirmation Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans to so qualify would not the Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the Interim Servicing Agreement, the related Confirmation Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller’s charter or by-laws or 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 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 violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on (i) the interests sale of the Purchaser hereunderMortgage Loans, (ii) the collectibility execution, delivery, performance or enforceability of this Agreement, the Interim Servicing Agreement, the related Confirmation Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereunder.Seller;
(be) The 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 compliance by the Seller with this Agreement Agreement, the Interim Servicing Agreement, the related Confirmation Letter and the other documents to be delivered related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by it hereunderthis Agreement, including the Interim Servicing Agreement, the related Confirmation Letter and the related Assignment and Conveyance are in the ordinary course of business of the Seller’s , and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement, the Interim Servicing Agreement, the related Confirmation Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) Reserved;
(h) The Seller will treat the sale of Receivables hereunder the Mortgage Loans to the Purchaser as a sale for reporting and accounting purposes and, to the Seller’s use of the proceeds of Purchasesextent appropriate, for federal income tax purposes;
(i) are within The Seller is an approved seller/servicer of residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and is a HUD approved mortgagee pursuant to Section 203 of the Seller’s corporate powersNational Housing Act, (ii) have been with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws and regulations, meets the minimum capital requirements, if applicable, set forth by all necessary corporate actionthe OCC, (iii) do not contravene (1) the Seller’s organizational documents, (2) any law, rule or regulation applicable and is in good standing to the Seller, (3) any contractual restriction binding on or affecting sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and no event has occurred which would make the Seller unable to comply with eligibility requirements or its property which would require notification to either ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or HUD;
(4j) The Seller does not believe, nor does it have any ordercause or reason to believe, writthat it cannot perform each and every covenant contained in this Agreement, judgmentthe Interim Servicing Agreement, award, injunction or decree binding on or affecting and the related Confirmation Letter. The Seller is solvent and the sale of the Mortgage Loans will not cause the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken with the intent to hinder, delay or its property, and (iv) do not result in or require the creation of defraud 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 Transferred Receivables pursuant to creditors;
(k) Neither this Agreement). This Agreement and each of , the Interim Servicing Agreement, nor any information, statement, tape, diskette, form, report, or other Transaction Documents document furnished or 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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 furnished 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, is owned (immediately prior pursuant 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with this Agreement, the Interim Servicing Agreement, the related Confirmation Letter 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 transactions contemplated hereby contains or will be accurate in all contain any untrue statement of material respects as of its date fact or (except as otherwise disclosed omits or will omit to state a material fact necessary to make the Purchaser at such time) as of the date so furnished.statements contained herein or therein not misleading;
(l) The principal place of business Seller acknowledges and chief executive office agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Seller and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred Mortgage Loans pursuant to in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.;
(m) The names Seller has delivered to the Purchaser financial statements as to its last complete fiscal year for which financial statements are available. All such financial statements fairly present the pertinent results of operations and addresses changes in financial position for each of all such periods and the Lock-Box Banks, together with financial position at the account numbers end of each such period of the Lock-Box Accounts at such Lock-Box Banks, are specified Seller and its subsidiaries and have been prepared in Exhibit B (as accordance with GAAP consistently applied throughout 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 remittedperiods involved, except as expressly permitted pursuant set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the terms of Section 5.01(h) hereof.Interim Servicing Agreement, the related Confirmation Letter or the related Assignment and Conveyance;
(n) None 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 Seller or any Originator is known by or uses any registered tradename or doing-business-as name.Mortgage Loans; and
(o) With respect to any programs used The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Receivables, no sublicensing agreements MERS Mortgage Loans for as long as such Mortgage Loans are necessary registered with MERS and is current in connection with the designation payment of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound all fees and assessments imposed 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 sublicensingMERS.
(p) The sale Seller is not in violation of, and the execution and delivery of Transferred Receivables 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 over the Seller or its assets, which violation might have consequences that would materially and adversely affect the 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;
(q) The Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents required to the Purchaser be delivered with respect to each Mortgage Loan pursuant to this Agreement, and have been delivered to the Custodian all other transactions between in compliance with the specific requirements of this Agreement. With respect to each Mortgage Loan, the Seller and the Purchaseris in possession of a complete Mortgage File in compliance with Exhibit A-1, except for such documents as 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 delivered to the extent required by generally accepted U.S. accounting principles).Custodian;
(r) The Seller is not, and is not controlled by, an “investment company” within Immediately prior to the meaning payment 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. 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 Purchase Price for each Transferred ReceivableMortgage Loan, the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution to was the capital owner of record of the Seller related Mortgage and the indebtedness evidenced by the applicable Originator or (ii) shall have purchased such Transferred Receivable from related Mortgage Note and upon the applicable Originator in exchange for payment (made of the Purchase Price by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cashPurchaser, 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 (ii) shall not have been made for or on account of an antecedent debt owed by any Originator to event that the Seller retains record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and no such sale is or may be voidable or subject to avoidance under any section the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof and only for the purpose of servicing and/or supervising the Federal Bankruptcy Code.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act servicing of 1940, as amended.each Mortgage Loan;
Appears in 1 contract
Sources: Assignment, Assumption and Recognition Agreement (Hsi Asset Securitization Corp)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Trustee, the Trust Administrator, the Certificateholders, the Servicer, each Subservicer, the Depositor and the Certificate Insurer that as followsof the Closing Date (and as of each Additional Transfer Date) or as of such date specifically provided herein:
(a) The Seller is a corporation licensed as a residential mortgage lender duly organized, validly existing and in good standing under the laws of Delawarethe State of California and has, and is duly qualified had at all relevant times, full corporate power to do businessoriginate the Mortgage Loans, and is in good standingto own its property, in every jurisdiction where the nature of to carry on its business requires it as currently conducted and to be so qualified, unless enter into and perform its obligations under this Agreement and to create the failure to so qualify would not 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 perform their respective obligations hereunder.Trust pursuant hereto;
(b) The execution and delivery of this Agreement by the Seller and its 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 (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration 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;
(c) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement to be consummated by it, has duly authorized 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 corporate 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 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 propertyAgreement, 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 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 this Agreement. This Agreement, assuming due authorization, execution and delivery by the Seller.
(c) No authorization or approval or other action byTrustee, the Servicer, the Trust Administrator and no notice to or filing withthe Depositor, any governmental authority or regulatory body is required for the due executionconstitutes a valid, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its the terms (hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement of creditors’ rights generally and general principles of equity, whether is considered in an action a proceeding in equity or at law law);
(d) The Seller is not in 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 equity).decree of any court or any order or regulation of any federal, state, municipal or other governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or materially and adversely affect the performance of its duties hereunder;
(e) Sales made pursuant to this Agreement will constitute a valid saleThere are no actions or proceedings against, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors or investigations of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, administrative agency or other tribunal (A) that, if determined adversely, would prohibit its entering into this Agreement or render the Certificates invalid, (B) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement or (C) that, if determined adversely, would prohibit or materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement or the Certificates;
(f) No consent, approval, authorization or order of any court or 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 body is registered pursuant to Section 12 of required for the Securities Exchange Act of 1934execution, (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, is owned (immediately prior to its sale hereunder) delivery and performance by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken of, or compliance by the Purchaser). When Seller with, this Agreement or the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred Receivable and Certificates, or for 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 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 consummation of the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with transactions contemplated by this 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 warranty by the Seller as to the priorityexcept for such consents, as against any other secured creditors of the relevant Obligorapprovals, of any Underlying Inventory Security Interest.
(k) Each Seller Report (authorizations and orders, if prepared by the Sellerany, 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years have been obtained prior to the date of this Agreement.Closing Date;
(mg) The names and addresses of all Seller did not sell 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 Mortgage Loans to the terms of Section 5.01(h) hereof.
(n) None of the Seller or Trust with any Originator is known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 any of its creditors; the Seller will not be rendered insolvent as a result of the Seller.sale of the Mortgage Loans to the Trust;
(qh) As of the Closing Date, or, with respect to each Additional Mortgage Loan, as of the related Additional Transfer Date, the Seller had good title to, and was the sole owner of, each Initial Mortgage Loan (or Additional Mortgage Loan, as the case may be) free and clear of any Lien other than any such Lien released simultaneously with the sale contemplated herein, and immediately upon each transfer and assignment herein contemplated, the Seller will have taken all steps necessary so that the Trust will have good title to, and will be the sole owner of, each Mortgage Loan free and clear of any Lien (except for such Liens as may exist consistent with the representations and warranties made in paragraph (c) of Exhibit C to the Mortgage Loan Purchase Agreement);
(i) The Seller has acquired title to the Mortgage Loans in good faith, without notice of any adverse claim;
(ij) timely filed all federal tax returns required No Officers' Certificate, statement, report or other document prepared by the Seller and furnished or to be filedfurnished by it 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 herein or therein not misleading;
(k) The transfer, (ii) timely filed all other material state assignment and local tax returns, conveyance of the Mortgage Notes 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 Mortgages by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with and Seller pursuant to the extent required by generally accepted U.S. accounting principles).Mortgage Sale Agreement are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction;
(rl) The Seller is not, duly licensed where required as a "Licensee" or is otherwise qualified in each state in which it transacts business and is not controlled byin default of such state's applicable laws, an “investment company” within rules and regulations, except where the meaning failure to so qualify or such default would not have a material adverse effect on the ability of the Investment Company Act of 1940, Seller to conduct its business or is exempt from all provisions of such act.perform its obligations hereunder;
(sm) The receivables credit Seller is solvent, is able to pay its debts as they become due and collection policies has capital sufficient to carry on its business and practices its obligations hereunder; it will not be rendered insolvent by the execution and delivery of this Agreement or by the Originators attached hereto as Exhibit A are in effect as performance of its obligations hereunder; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Seller prior to the date hereof;
(n) As of the date of this Agreement. Since the date Prospectus Supplement, the information under the captions "THE MORTGAGE POOL" and "THE ORIGINATOR AND THE SERVICER--Underwriting Standards; Representations" will contain no untrue statement of this Agreementa material fact or omit to state any material fact necessary to make the statements therein, there have been no material changes in light of the Credit and Collection Policy other than in accordance with this Agreement.circumstances under which they were made, not misleading; and
(to) No event or circumstance has occurred since the date of this Agreement that has a Material Adverse Effect.
(u) With respect The Seller is not required to each Transferred Receivable, the Seller (i) shall have received each Transferred Receivable acquired by it be registered as a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated "investment company" under the Investment Company Act of 1940, as amended. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders, the Depositor, the Servicer, the Trustee, the Trust Administrator and the Certificate Insurer. Upon discovery by any of the Seller, the Depositor, the Servicer, each Subservicer, the Trustee, the Trust Administrator or the Certificate Insurer of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any Mortgage Loan or the interests of the Certificateholders therein, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the other parties. The obligations of the Seller set forth in Section 2.06(b) hereof to cure any breach or to substitute for or repurchase an affected Mortgage Loan shall constitute the sole remedies available to the Certificateholders, the Servicer, the Trust Administrator, the Trustee or the Certificate Insurer respecting a breach of the representations and warranties contained in this Section 2.08.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Financial Asset Securities Corp)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not 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 perform their respective obligations hereunderMaterial 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 's sale and contribution of Receivables hereunder and the Seller’s 's use of the proceeds of Purchases, (i) are within the Seller’s 's corporate powers, (ii) have been duly authorized by all necessary 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 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 Transferred Receivables pursuant to this Agreement) except in the case of clauses (iii)(l), (iii)(3) and (iv), where such conditions would not have a Material Adverse Effect. 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party this Agreement or any other document to be delivered by it thereunder hereunder, except for where the filing of financing statements which are referred failure to thereinobtain such authorization, approval action or notice would not have a Material Adverse Effect.
(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 (terms, except as the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ ' rights generally and subject to the effect of general principles of equity, equity (regardless of whether considered in an action a proceeding in equity or at law or equitylaw).
(e) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omittedThe consolidated balance sheet of the Seller and its consolidated subsidiaries as at December 30, 2000, and the related statements of income and retained earnings of the Seller and its consolidated 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 as at such date and the results of the operations of the Seller and its consolidated subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied, and since December 30, 2000 there has been no material adverse change in the business, operations, property or financial or other condition of the Seller.]
(g) There is no pending or, to the knowledge of the Seller, threatened, action, investigation or threatened action or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have materially adversely affect the financial condition or operations of the Seller and its subsidiaries taken as a Material Adverse Effectwhole 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.
(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 purported to be sold 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, hereunder is an Eligible Receivable. Each , 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 Transferred 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 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 the Seller in accordance with the Initial 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) 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 make the 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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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(g5.01(h)). 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 The Seller or any Originator is not known by or uses and does not use any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sale 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.
(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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Personal Care Holdings Inc)
Representations and Warranties of the Seller. The Seller represents and warrants as followsto the Purchaser that:
(a) The Seller is a corporation Delaware corporation, duly organized, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every its jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunderorganization.
(b) The Seller has authorized 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 corporate 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 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 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) transactions contemplated hereby. No authorization or approval or other action by, and no notice is necessary to or filing with, any governmental authority or regulatory body is required for the due authorize such execution, delivery and performance by the Seller of the Transaction Documents to which it is performance, and upon such execution and delivery, this Agreement shall constitute a party or any other document to be delivered by it thereunder 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 Seller, enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(ec) Sales made pursuant to this Agreement will constitute a valid saleNo consent, transferapproval, and assignment authorization or order of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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 body or arbitrator which may have a Material Adverse Effecthaving jurisdiction over the Seller is required for the execution, delivery or performance by the Seller of its obligations hereunder, including without limitation the sale of the Securities.
(hd) No proceeds Neither the sale of any Purchase the Securities nor the performance of the Seller's obligations hereunder will be used 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) to acquire any equity security the certificate of a class which is registered pursuant to Section 12 incorporation, bylaws or other organizational documents of the Securities Exchange Act of 1934, Seller or (ii) the terms of any material agreement to acquire which the Seller is a party or to which 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 BoardSeller's properties is subject.
(ie) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized in any The Seller Report or other written statement made by or on behalf of has good and marketable title to 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 ReceivableSecurities. Each Transferred Receivable, together with the Related Security, is The Securities are owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim (security interest, lien, claim or other encumbrance or any restriction on transfer, other than any Adverse Claim arising solely those imposed by the Securities Act or as set forth on Schedule 2(d) hereto (collectively, "Encumbrances"), and will be transferred to the result Purchaser free of any action taken by Encumbrances.
(f) The Seller is familiar with the Purchaser)business and operations of the Company and has been given the opportunity to obtain from the Company all information that it has requested regarding its business and prospects. When The Seller acknowledges that the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by to the Seller as to about the priorityCompany's business, as against any other secured creditors of the relevant Obligorprospects, of any Underlying Inventory Security Interestfinancial condition or otherwise.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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.
(pg) The sale of Transferred Receivables the Securities by the Seller is not part of a plan or scheme to evade the Purchaser pursuant to this Agreement, and all other transactions between registration requirements of the Securities Act. Neither 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 nor 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. 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 person acting on behalf of the Seller by the applicable Originator has offered or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions sold any of the Initial 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 (ii) shall not have been made for or on account of an antecedent debt owed Securities by any Originator to the Seller and no such sale is form of general solicitation or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Codegeneral advertising.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Purchase Agreement (Warburg Pincus Equity Partners Lp)
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants to the Trustee, the Oversight Agent, the Certificate Insurer and to the Owners as followsof the Startup Day that:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, the State of California and is in good standing, standing as a foreign corporation in every 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, unless conducted and to enter into and discharge its obligations under this Agreement and the failure other Operative Documents to so qualify would not have which it is 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 perform their respective obligations hereunderparty.
(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 corporate powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary corporate action, (iii) do action on the part of the Seller and will not contravene (1) violate the Seller’s organizational documents's Articles 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 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 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 Sellerproperties.
(c) No authorization or approval or This Agreement and the other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Operative Documents to which it the Seller is a party or any other document to be delivered party, assuming due authorization, execution and delivery by it thereunder 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 parties hereto and thereto, each constitutes the legala valid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its the terms (hereof and thereof, except as enforceability the enforcement hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and by general principles of equity, equity (whether considered in an a proceeding or action in equity or at law law).
(d) The Seller is not in default with respect to any order or equity)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) Sales made pursuant 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 will constitute or any other Operative Document to which it is a valid sale, transfer, party or that would materially and assignment adversely affect the condition (financial or otherwise) or operations of the Transferred Receivables to Seller or its properties or might have consequences that would materially and adversely affect the Purchaser, enforceable against creditors of, and purchasers from, validity or enforceability of Mortgage Loans or the Seller. The Seller shall have no remaining property interest in any Transferred Receivable's performance hereunder or under the other Operative Documents to which it is a party.
(f) [Intentionally omittedNo certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading.]
(g) There The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is no pending orresponsible in accordance with the Operative Documents or which are attributed to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to the Seller or 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 Seller'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 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 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 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 and the other Operative Documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other Operative Documents to which it is a party.
(i) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(j) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Mortgage Loans.
(k) The Seller did not sell any interest in any Mortgage Loan with any intent to hinder, delay or defraud any of its creditors.
(l) The Seller is solvent and the Seller will not be rendered insolvent as a result of the sale of the Mortgage Loans.
(m) On the Startup Day, the Trustee will have good title on behalf of the Trust to each Initial Mortgage Loan and such other items comprising the corpus of the Trust Estate free and clear of any lien.
(n) There has been no material adverse change in any information submitted by the Seller in writing to the Certificate Insurer.
(o) To the best knowledge of the Seller, threatened, action, investigation or proceeding affecting the Seller or no document (including any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effect.
(hinformation provided in electronic form) 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 submitted 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against Certificate Insurer contains any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by the Seller, untrue 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation misleading statement of a new Collection Agent pursuant material fact or fails to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be state a material fact required to be bound by a confidentiality agreement reasonably acceptable stated therein or necessary in order to make the applicable Originator), except for those programs licensed from Persons which are statements therein 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 sublicensingmisleading.
(p) The sale of Transferred 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, no material adverse change affecting any security for the Class A Certificates has occurred prior to delivery of and payment for the Class A Certificates.
(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 is not in default under any agreement involving financial obligations or made adequate provision for on any outstanding obligation which would materially adversely impact the payment financial condition or operations of all taxes, assessments and other governmental charges (other than any tax, assessment the Seller or governmental charge which is being contested legal documents associated with the transaction contemplated 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)this Agreement.
(r) The Seller is not, and is shall not controlled by, an “investment company” within the meaning generally solicit any refinancing of any of the Investment Company Act of 1940Mortgage Loans; provided however, that this covenant shall not prevent or is exempt restrict: (1) the Seller from all provisions of such act.
(s) The receivables credit and collection policies and practices making general solicitations, by mail, advertisement or otherwise of the Originators attached hereto general public or persons on a targeted list, so long as Exhibit A are the list was not generated from the Mortgage Loan Schedule, (2) any refinancing in effect as of connection with a Mortgagor's unsolicited request for refinancing, (3) any refinancing in connection with the date of this Agreement. 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 Seller's policy to each Transferred Receivable, the Seller solicit (i) shall have received each Transferred Receivable acquired by it as a contribution Mortgagors who indicate to the capital of the Seller by the applicable Originator or their intent to refinance their Mortgage Loans, (ii) shall have purchased such Transferred Receivable from with respect to Mortgage Loans in Group II, Mortgagors with Mortgage Loans for which the applicable Originator in exchange for payment (made next interest rate adjustment is determined by the Seller to be higher than the applicable Originator in accordance current market rate for a fixed rate mortgage loan with the provisions same risk qualifications or (iii) in connection with the general solicitation described in (1) above, and (4) as otherwise disclosed in the Prospectus Supplement or the Prospectus. It is understood and agreed that the representations and warranties set forth in this Section 3.1 shall survive delivery of the Initial 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 (ii) shall not have been made for or on account of an antecedent debt owed by any Originator Mortgage Loans to the Seller and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy CodeTrustee.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-1)
Representations and Warranties of the Seller. The Seller represents and warrants as followsto the Bank that:
(a) The the Seller is a corporation duly organizedhas the power to execute, validly existing deliver and in good standing perform its obligations under the laws of Delaware, Purchase Documents and is duly qualified to do business, and is in good standing, in every jurisdiction where under any other documents connected with the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests performance of the Purchaser hereunder, (ii) Purchase Documents; all necessary action has been taken by Seller to authorise the collectibility of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereunder.
(b) The execution, delivery and performance of the Purchase Documents and any other documents connected with the performance of the Purchase Documents; no limitation on the Seller's powers will be exceeded as a result of transactions under the Purchase Documents or any other documents connected with the performance of the Purchase Documents;
(b) upon acceptance of the Offer by the Seller Bank, the Purchase Documents constitute Seller's valid and legally binding obligations 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 corporate 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 binding on or affecting the Seller or its property or (4) any orderenforceable in accordance with their terms, writsubject to applicable bankruptcy, judgmentinsolvency, awardreorganisation, injunction or decree binding on or affecting the Seller or its propertymoratorium, and (iv) do not result in or require the creation of any liensimilar laws affecting legal entities' rights generally, security interest or other charge or encumbrance upon or with respect and to any of its properties (except for the transfer of the Seller’s interest in the 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.general equitable principles;
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Purchase Documents and any other documents connected with the performance of the Purchase Documents by each of Seller will not (i) contravene any existing law, regulation or authorisation to which it is subject, (ii) result in any material breach of, or default under, any agreement or other instrument to which it is a party or is subject, or (iii) contravene any provision of Seller's Articles of Incorporation, By-laws or other document to be delivered by it thereunder except for the filing of financing statements which are referred to therein.constituent documents;
(d) This Agreement and each every material consent for, authorisation of or registration with governmental or public bodies or courts required by Seller in connection with the execution, delivery performance, validity, enforceability or admissibility in evidence of the Purchase Documents and any other Transaction Documents to be delivered by documents connected with the Seller pursuant hereto constitutes the legal, valid and binding obligation performance of the Seller enforceable against the Purchase Documents has been obtained or made and is in full force and effect and there has been no default by Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement observance of creditors’ rights generally and general principles of equity, whether considered any conditions imposed in an action at law or equity).connection therewith; and
(e) Sales made pursuant there are no actions, proceedings or claims pending or to this Agreement will constitute the best of Seller's knowledge threatened, the adverse determination of which might have a valid salematerially adverse effect on Seller's ability to perform their obligations under, transfer, and assignment or affect the validity or enforceability of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.Purchase Documents;
(f) [Intentionally omitted.]any of the documents given to Bank in accordance with Clause 5.1 (Documentary Conditions Precedent) of these Terms and Conditions is correct and a true copy of the original;
(g) There is no pending orthe Contract and all related documents thereto are in full force and effect and constitute legally binding, 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(l) The principal place of business and chief executive office enforceable obligations of the Seller and the office where Obligor;
(h) the execution, delivery and performance of the Contract and any other documents connected with the performance of the Contract by Seller will not (i) contravene any existing law, regulation or authorisation to which it is subject, (ii) result in any breach of, or default under, any agreement or other instrument to which it is a party or is subject, or (iii) contravene any provision of its Articles of Incorporation, By-laws or other constituent documents;
(i) all consents, licenses, permissions and registrations, if any, which are necessary for and/or in connection with the execution, delivery, performance, validity and enforceability of the Contract by Seller have been obtained and are in full force and effect;
(j) the Seller keeps its records concerning has properly made the Transferred Receivables are located at Facilities accessible to the address or addresses referred Obligor in the way which allows the Obligor to exercise the Right of Access in Section 5.01(b). The accordance with the Contract;
(k) the Seller has not changed its name during the two years prior legal title to the date Facilities and, other than the Contract which the Obligor may record on the title of this Agreement.the Facilities, there is no security interest, mortgage, pledge, nor any other agreement or arrangement having the effect of conferring security, over or in respect of the whole or any part of the Facilities;
(l) the purchase and sale of the Receivables is not prohibited or restricted under the Contract;
(m) The names and addresses of all the Lock-Box Banks, Receivables (together with the account numbers of ancillary rights and the Lock-Box Accounts at such Lock-Box Bankssecurity, are specified in Exhibit B (as if any) purchased by the same may be updated from time to time pursuant to Section 5.01(g)). The Lock-Box Accounts are Bank is a legally valid, binding and enforceable claim against the only accounts into which Collections of Receivables are deposited or remitted, except as expressly permitted pursuant Obligor and has been validly transferred to the terms of Section 5.01(h) hereof.Bank;
(n) None Seller has no actual knowledge of any circumstances which make the ability of the Seller Obligor to pay questionable or any Originator is known by or uses any registered tradename or doing-business-as name.which impair the enforceability of the Receivables;
(o) With respect to any programs used in the servicing of the Receivables, no sublicensing agreements are necessary in connection Receivables (together with the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have ancillary rights and the benefit of such programs (it being understood that, however, the Collection Agentsecurity, 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 any) purchased by the express terms Bank is, subject to Clause 7.1 (Payments by Obligor) free of such license either (i) require the consent of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.all objections, set-off, counterclaims and deductions whatsoever; and
(p) The 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 aggregate face amount 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 Receivables 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. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other less 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.CDN 15,000,000
Appears in 1 contract
Sources: Offer for Purchase of Receivables (Magna Entertainment Corp)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it as presently conducted and to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans contained 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 Transfer Agreement were 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 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 Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the Purchaser), Seller pursuant to Sections 1.04(b)(vii) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(viii) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the PurchaserTransferor in the Transfer Agreement or Bring Down Letter. Nothing in this Section 4.01(j) The Seller shall constitute 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 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 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 June 15, 2004:
(i) The information set forth with respect to the priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or (except as otherwise disclosed to the Purchaser at dates respecting which such time) as of the date so furnished.information is given;
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 As of the Seller.Closing Date, no Mortgage Loan is in foreclosure;
(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 As of the payment of all taxesClosing Date, assessments and other governmental charges (other than any tax, assessment or governmental charge which each Mortgage Loan 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” a "qualified mortgage" 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 Section 860G of the Originators attached hereto Code (as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreementdetermined without regard to Treas.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) The representations and warranties with respect 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 Mortgage Loans made by or on behalf of the Transferor to the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, 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 Report cure such breach or effect such other statementremedy 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 misrepresentation of a material fact or fraud in respect of the origination, modification or amendment 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 2001 payment due date. In addition, as of the Cut-off Date, no more than 1.82% 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 0.45% 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 4.34% of the Mortgage Loans have failed to pay principal and interest on the May 1, 2001 due date.
(iii) Each Mortgage Loan, as of the Closing Date, is either a fixed rate or an Eligible Receivableadjustable 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 Transferred ReceivableMortgage 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, together however, that certain fixed rate Mortgage Loans constituting approximately 0.43% 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 Related Security15th year.
(iv) No more than 1.5% and 43.46% of the Mortgage Loans, is owned based on the aggregate Cut-Off Date Balance of the Mortgage Loans, had Loan-to-Value Ratios at origination exceeding 90% and 80%, respectively; and none of the Mortgage Loans had Loan-to-Value Ratios at origination exceeding 95%;
(immediately prior to its sale hereunderv) 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 Transferred Receivable Each Mortgage Loan was originated, 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)applicable seller credit grade was applied, and no effective financing 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 the Seller substantially in accordance with the Initial Purchase AgreementTransferor's underwriting criteria attached hereto as Exhibit A;
(vi) No more than 0.93% 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 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 favor of Purchaser in accordance with this Agreement, or the appraisal made 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 warranty by the Seller as to the priority, as against any other secured creditors origination of the relevant Obligor, related mortgage loan and (C) other matters to which like properties are commonly subject which do not materially interfere with the benefits of any Underlying Inventory Security Interestthe security intended to be provided by such Mortgage.
(kviii) There is no delinquent tax or 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 Custodian with respect to the related Mortgage Loan;
(x) Each Seller Report 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 such laws;
(if prepared by xi) None of the SellerMortgage 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, or flood insurance in the amount described in the Servicing Agreement (and to the extent that information contained therein required by such agreement) covers the related Mortgaged Property (either by coverage under the federal flood insurance program or 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 supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time valid and remains in full force and effect;
(xiv) No selection procedure reasonably believed by the Seller to be adverse to the Purchaser interests of the Certificateholders or the Guarantor, was used in connection selecting the Mortgage Loans for inclusion in the Trust Fund; provided, however, that the Mortgage Loans were selected by the Seller from its portfolio of mortgage loans originated in accordance with this Agreement the Transferor's underwriting criteria attached hereto as Exhibit A.
(xv) 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 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 or will be accurate true and correct in all material respects as of its 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 related Mortgagor and is enforceable by the Trustee or (except as otherwise disclosed any co-trustee appointed pursuant to the Purchaser Trust Agreement against the Mortgagor in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by law, and all parties to each Mortgage Loan and 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;
(xix) All individual insurance policies contain a standard mortgagee clause naming the Seller, its successors and assigns, as mortgagee. All premiums thereon have been paid. Each Mortgage obligates the Mortgagor thereunder to maintain all such insurance at such time) as the Mortgagor's cost and expense, and upon the Mortgagor's failure to do so, authorizes the holder of the date so furnished.Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor;
(lxx) The principal place Any advances made after the date of business and chief executive office origination 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). The Seller has not changed its name during the two years a Mortgage Loan but prior to the date Cut-Off Date have been consolidated with the outstanding principal amount secured by the related Mortgage, and the secured principal amount, as consolidated, bears a single interest rate and single repayment term reflected on the Mortgage Loan Schedule. The consolidated principal amount does not exceed the original principal amount of this Agreement.the related Mortgage Loan;
(mxxi) The names and addresses of all the Lock-Box Banks, together There are no defaults in complying 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(hthe Mortgage, and either (1) hereof.any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges or ground rents which previously became due and owing have been paid, or (2) an escrow of 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 nature of escrow payments, including without limitation, taxes and insurance payments, to the best of Seller's knowledge, the 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;
(nxxii) None 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 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 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 any Originator is known other party to make payments in addition to those made by or uses any registered tradename or doing-business-as name.the Mortgagor;
(oxxv) With respect to any programs used 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 servicing case of a 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 Receivables, no sublicensing agreements are necessary in connection related Mortgagor which would materially interfere with the designation of right to sell the Mortgaged Property at a new Collection Agent pursuant trustee's sale or the right to Section 6.01 so that such new Collection Agent shall have foreclose the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable Mortgage subject to the applicable Originator)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, except for those programs licensed from Persons which are not affiliated with or trustee's sale of, the applicable Originator which by Mortgaged Property pursuant to the express terms of such license either (i) require proper procedures, the consent holder of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.Mortgage Loan will be able to deliver good and merchantable title to the property;
(pxxvii) All amounts received after the Cut-Off Date with respect to the Mortgage Loans to which the Seller is not entitled will be deposited into the Certificate Account within one Business Day after the Closing Date;
(xxviii) The sale of Transferred Receivables by Seller has not transferred the Seller Mortgage Loans to the Purchaser pursuant to this AgreementDepositor, and all other transactions between the Seller and Depositor has not transferred the PurchaserMortgage Loans to the Trust Fund, have been and will be made in good faith and without with any 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 state 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. To the best of Seller.
(q) The Seller has (i) timely filed 's knowledge, all federal tax returns parties which have had any interest in the Mortgage Loan were in compliance with any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located or were not 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 licensed 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).state;
(rxxx) The Seller is not, and is not controlled by, an “investment company” within the meaning of the Investment Company Act of 1940, Each document 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. Since the date of this Agreement, there have been no material changes instrument in the Credit and Collection Policy other than related Mortgage File is 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 form generally acceptable 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Trust as followsof the Additional Purchase Date:
(a) The the Seller is a corporation duly organizedbranch of Capital One Bank, validly existing and in good standing a Virginia banking corporation, licensed under the laws of DelawareCanada and has, in all material respects, full power and authority to own its properties and conduct its credit card business as presently owned and conducted by it, and to execute, deliver and perform its obligations under this Assignment;
(b) the Seller is duly qualified to do business, and is in good standing, standing and has obtained all necessary licenses and approvals in every each jurisdiction where the nature of its business requires it to be so qualified, unless the in which failure to so qualify or to obtain such licences and approvals would not render any Lending Agreement relating to a Designated Additional Account or any Receivable arising in such Account unenforceable by the Seller or the Trust or would have a material adverse effect on the Series Indebtedness Holders or the Additional Purchased Assets; provided, however, that no representation or warranty is made with respect to any qualifications, licences, or approvals which the Trust would have to obtain to do business in any jurisdiction in which the Trust seeks to enforce directly any such Account or Receivable;
(ic) the interests execution and delivery of this Assignment and the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to 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 its obligations 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 the Seller by all necessary corporate action, action on the part of the Seller;
(iii) do not contravene (1d) the execution and delivery by the Seller of this Assignment, the performance by the Seller of its obligations hereunder and the fulfilment of the terms hereof applicable to the Seller will not (i) conflict with or violate the constating documents of the Seller’s organizational documents, (2) or any law, rule or regulation Requirements of Law applicable to the Seller, or (3ii) conflict with, or result in any contractual restriction binding on breach of any of the material terms and provisions of, or affecting constitute (with or without notice or lapse of time or both) a material default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it or its property properties are bound;
(e) there are no proceedings or (4) any orderinvestigations pending or, writ, judgment, award, injunction or decree binding on or affecting to 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 best knowledge of the Seller’s interest , threatened against the Seller before any Governmental Authority (i) asserting the invalidity of this Assignment, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Assignment, (iii) seeking any determination or ruling that, in the Transferred Receivables pursuant to this Agreement). This Agreement and each reasonable judgment of the other Transaction Documents to be delivered by Seller, would materially and adversely affect 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 for the due execution, delivery and performance by the Seller of its obligations under this Assignment, or (iv) seeking any determination or ruling that would materially adversely affect the Transaction Documents to which it is a party validity or enforceability of this Assignment;
(f) all authorizations, consents, orders and approvals of, or registrations or declarations with, any person or any other document Governmental Authority required to be delivered by it thereunder 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 obtained, effected or given by the Seller pursuant hereto in connection with the execution and delivery by the Seller of this Assignment and the performance of the transactions contemplated by this Assignment (including the conveyance of the Additional Purchased Assets to the Trust) have been duly obtained, effected or given and are in full force and effect;
(g) this Assignment constitutes the a legal, valid and binding obligation of the Seller and is enforceable against the Seller in accordance with its terms (terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar insolvency and other laws affecting the enforcement rights of creditors’ rights creditors generally from time to time in effect and except as such enforceability may be limited by general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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 Schedule 2 to the Receivables Purchase will be used (i) to acquire any equity security of a class which is registered Agreement, as supplemented pursuant to Section 12 2 of this Assignment, is an accurate and complete listing in all material respects of all 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, Designated Additional Accounts as of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred Receivable Additional Cut-Off Date 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 with respect to the Purchaser in connection with this Agreement identity of the Designated Additional Accounts and the Receivables arising therein is or will be accurate true and correct in all material respects as of its date or the Additional Cut-Off Date;
(except as otherwise disclosed i) each Receivable conveyed to the Purchaser at Trust hereunder is free and clear of any Liens;
(j) this Assignment constitutes a valid sale, transfer and assignment to the Trust of all of the Seller’s right, title and interest in, to and under the Receivables arising in the Designated Additional Accounts conveyed hereunder and the proceeds thereunder which, (i) in the case of such timeReceivables arising in the Designated Additional Accounts during the period from the applicable Additional Cut-Off Date to the applicable Additional Purchase Date, is enforceable upon the applicable Additional Purchase Date and (ii) in the case of Receivables subsequently arising in the Designated Additional Accounts, is enforceable upon the date such Receivables are created. Upon the filing of the assignments, financing statements and continuation statements (and other documents where applicable) required under the PPSA and, in the case of Receivables hereafter created and the proceeds thereof, upon the creation thereof, the Trust shall have a first priority perfected ownership interest in all such Receivables and the proceeds thereof;
(k) on the Additional Cut-Off Date, each Designated Additional Account is an Eligible Account [and is not a non-consumer Account];
(l) on the Additional Cut-Off Date, each Receivable arising in a Designated Additional Account is an Eligible Receivable;
(m) as of the date so furnished.
(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 creation of any new Receivable arising in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.
(m) The names and addresses of all the Lock-Box Banksa Designated Additional Account, 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.Receivable is an Eligible Receivable;
(n) None no selection procedures reasonably believed by the Seller to be materially adverse to the interests of the Seller or Series Indebtedness Holders (without regard to the availability of any Originator is known by or uses any registered tradename or doing-business-as name.Series Enhancement) have been used in selecting the Designated Additional Accounts;
(o) With neither the Seller nor the Obligors in respect to of any programs used Receivable owing in the servicing respect of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall Designated Additional Accounts will be required to withhold or pay any amount with respect to Tax as a result of payments required to be bound by a confidentiality agreement reasonably acceptable made to the applicable Originator), except for those programs licensed from Persons which are not affiliated with the applicable Originator which Trust under or by the express terms virtue of such license either (i) require the consent of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.this Assignment;
(p) The sale as of Transferred Receivables by each of the Additional Cut-Off Date and the Additional Purchase Date, no Insolvency Event with respect to the Seller has occurred and the transfer of the Receivables arising in the Designated Additional Accounts to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have Trust has not been and will be made in good faith and without intent to hinder, delay or defraud creditors contemplation of the Seller.occurrence thereof; and
(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 sale 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 Trust of the Investment Company Act Receivables arising in the Designated Additional Accounts will not result in the occurrence of 1940an Amortization Event, a Series Amortization Event or an Event of Default, or is exempt from all provisions in any event that, after the giving of such act.
(s) The receivables credit and collection policies and practices notice or lapse of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreementtime or both, there have been no material changes will result 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) shall not have been made for or on account occurrence of an antecedent debt owed by any Originator to the Seller and no such sale is Amortization Event, a Series Amortization Event or may be voidable or subject to avoidance under any section an Event of the Federal Bankruptcy CodeDefault.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Purchase Agreement
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants to the Trustee, the Depositor, the Servicers, the Master Servicer and the Owners as of the Startup Day as follows:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, governing its creation and is duly qualified to do business, existence and is in good standing, standing as a foreign corporation in every 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, unless conducted and to enter into and discharge its obligations under the failure Operative Documents to so qualify would not have which it is 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 perform their respective obligations hereunderparty.
(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 corporate powers, (ii) Operative Documents to which it is a party have been duly authorized by all necessary corporate action, (iii) do action on the part of the Seller and will not contravene (1) violate the Seller’s organizational documents's certificate 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 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 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 Sellerproperties.
(c) No authorization or approval Each Operative Document to which the Seller is a party, assuming due authorization, execution and delivery by the other parties hereto and thereto, constitutes a valid, legal and binding obligation of the Seller, enforceable against it in accordance with the terms hereof and thereof, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding or action byin 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) 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 under the Operative Documents to which the Seller is a party.
(f) No certificate of an officer, statement furnished in writing or report delivered or to be delivered pursuant to the terms hereof by the Seller 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, statement or report not misleading.
(g) The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is responsible in accordance with the Operative Documents or which are attributable to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to 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 notice fact known to the Seller that materially adversely affects or filing within 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 Mortgage Loan (including the related Note) and such other items of the Trust Estate free and clear of any lien, charge, mortgage, encumbrance or rights of others.
(i) 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 regulatory body is required for agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the due 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, delivery and performance by the Seller of the Transaction Operative Documents to which it is a party 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 document to be delivered Operative Documents on the part of the Seller and the performance by it thereunder except for the filing Seller of financing statements which are referred to therein.
(d) This its obligations under this Agreement and each such of the other Transaction Operative 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute which it is a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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 lawparty.
(j) Each Receivable characterized The transactions contemplated by the Operative Documents are in any Seller Report or other written statement made by or on behalf the ordinary course of business 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security InterestSeller.
(k) Each The Seller Report (if prepared is not insolvent, nor will it be made insolvent 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 its date or (except as otherwise disclosed to the Purchaser at such time) as transfer of the date so furnishedMortgage Loans, nor is it aware of any insolvency pending.
(l) The principal place of business transfer, assignment and chief executive office conveyance of the Seller Notes and the office where Mortgages by the Seller keeps its records concerning the Transferred Receivables hereunder are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior subject to the date of this Agreementbulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction.
(m) The names Seller is not aware that any Mortgage Loan breaches any representation or warranty hereof that as of the Startup Date is not subject to cure. It is understood and addresses agreed that the representations and warranties set forth in this Section 3.03 shall survive delivery of the respective Mortgage Loans to the Trustee. Upon discovery by any of the Servicers, 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 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 LockMonthly Remittance Date next succeeding such discovery or receipt of notice (i) within two years of the Startup Day, substitute in lieu of any Mortgage 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 Subsequent Cut-Box BanksOff 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 account numbers aggregate amount of (A) all unreimbursed Delinquency Advances and Servicing Advances theretofore made with respect to such Mortgage Loan and (B) the Lock-Box Accounts at interest portion of any Delinquency Advances which the related Servicer has theretofore failed to remit with respect to such Lock-Box Banks, are specified in Exhibit B Mortgage Loan (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 a "Substitution Amount") to the terms of Section 5.01(h) hereof.
(n) None of the Seller or any Originator is known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used related Servicer for deposit 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 related Principal and Interest Account or (ii) prohibit 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 such sublicensing.
(p) The sale provision of Transferred Receivables by this Agreement to the contrary, with respect to any Mortgage Loan which is not in default or as to which no default is imminent, no repurchase or 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.
inability to deliver a REMIC Opinion shall be repurchased or substituted for (qsubject to compliance with Sections 3.03, 3.04 or 3.06, as the case may be) The Seller has upon the earlier of (ia) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns, and (iii) paid the occurrence of a default 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 imminent default with respect to which the obligation to pay such amount is adequately reserved against in accordance with Mortgage Loan and to the extent required by generally accepted U.S. accounting principles).
(rb) 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. 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 receipt by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions Trustee of the Initial 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 (ii) 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 CodeREMIC Opinion.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, together event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Related Security, is owned applicable Transfer Agreement and (immediately prior to its sale hereunderii) by a representation or warranty of 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 Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinunder this Agreement, the Related Security only right or Collections with respect thereto is on file in remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any recording office except such as may be filed in favor applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with the Initial Purchase Agreementthis Section 1.04(b) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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. 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) The representations and warranties with respect 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 Mortgage Loans made by or on behalf of each Transferor to the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, 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 Report cure such breach or effect such other statementremedy 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 misrepresentation of a material fact or fraud in respect of the origination, modification or amendment 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 Eligible Receivableadjustable 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 Transferred ReceivableMortgage 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, together 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 Related Security15th 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%, is owned 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%;
(immediately prior to its sale hereunderv) by the Seller free and clear Notwithstanding clause (xvi) of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaserthis Section 1.04(c). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of , each Transferred Receivable Mortgage Loan was originated, 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)applicable seller credit grade was applied, and no effective financing 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 the Seller substantially in accordance with the Initial Purchase Agreementrelated 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 favor of Purchaser in accordance with this Agreement, or the appraisal made 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 warranty by the Seller as to the priority, as against any other secured creditors origination of the relevant Obligorrelated mortgage loan, (C) other matters to which like properties are commonly subject which do not materially interfere with the benefits of any Underlying Inventory Security Interestthe 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.
(kviii) There is no delinquent tax or 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 Seller Report 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 such laws;
(if prepared by xi) None of the SellerMortgage 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, or flood insurance in the amount described in the related Reconstituted Servicing Agreement (and to the extent that information contained therein required by such agreement) covers the related Mortgaged Property (either by coverage under the federal flood insurance program or 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 supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time valid and remains in full force and effect;
(xiv) No selection procedure reasonably believed by the Seller to be adverse to the Purchaser interests of the Certificateholders or the Guarantor, was used in connection selecting the Mortgage Loans for inclusion in the Trust Fund; provided, however, that the Mortgage Loans were selected by the Seller from its portfolio of mortgage loans originated in accordance with this Agreement the related Transferor's underwriting criteria attached hereto as Exhibit A.
(xv) 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 or will be accurate true and correct in all material respects as of its 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 related Mortgagor and is enforceable by the Trustee or (except as otherwise disclosed any co-trustee appointed pursuant to the Purchaser Trust Agreement against the Mortgagor in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by law, and all parties to each Mortgage Loan and 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;
(xix) All individual insurance policies contain a standard mortgagee clause naming the related Seller, its successors and assigns, as mortgagee. All premiums thereon have been paid. Each Mortgage obligates the Mortgagor thereunder to maintain all such insurance at such time) as the Mortgagor's cost and expense, and upon the Mortgagor's failure to do so, authorizes the holder of the date so furnished.Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor;
(lxx) The principal place Any advances made after the date of business and chief executive office origination 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). The Seller has not changed its name during the two years a Mortgage Loan but prior to the date Cut-Off Date have been consolidated with the outstanding principal amount secured by the related Mortgage, and the secured principal amount, as consolidated, bears a single interest rate and single repayment term reflected on the Mortgage Loan Schedule. The consolidated principal amount does not exceed the original principal amount of this Agreement.the related Mortgage Loan;
(mxxi) The names and addresses of all the Lock-Box Banks, together There are no defaults in complying 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(hthe Mortgage, and either (1) hereof.any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges or ground rents which previously became due and owing have been paid, or (2) an escrow of 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 nature of escrow payments, 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;
(nxxii) None 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 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 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 any Originator is known other party to make payments in addition to those made by or uses any registered tradename or doing-business-as name.the Mortgagor;
(oxxv) With respect to any programs used 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 servicing case of a 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 Receivables, no sublicensing agreements are necessary in connection related Mortgagor which would materially interfere with the designation of right to sell the Mortgaged Property at a new Collection Agent pursuant trustee's sale or the right to Section 6.01 so that such new Collection Agent shall have foreclose the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable Mortgage subject to the applicable Originator)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, except for those programs licensed from Persons which are not affiliated with or trustee's sale of, the applicable Originator which by Mortgaged Property pursuant to the express terms of such license either (i) require proper procedures, the consent holder of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.Mortgage Loan will be able to deliver good and merchantable title to the property;
(pxxvii) All amounts received after the Cut-Off Date with respect to the Mortgage Loans to which the Seller is not entitled will be deposited into the Collection Account within one Business Day after the Closing Date;
(xxviii) The sale of Transferred Receivables by Seller has not transferred the Seller Mortgage Loans to the Purchaser pursuant to this AgreementDepositor, and all other transactions between the Seller and Depositor has not transferred the PurchaserMortgage Loans to the Trust Fund, have been and will be made in good faith and without with any 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 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 wherein the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which Mortgaged Property 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 1940located, or is exempt from all provisions of (B) qualified to do business in 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. Since the date of this Agreementstate, 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 the applicable Originator or (iiC) shall have purchased federal savings and loan associations or national banks having principal offices in such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase pricestate, or a combination thereof (D) not doing business in an amount which constitutes fair consideration and reasonably equivalent valuesuch state so as to require qualification or licensing, and each or (E) not otherwise required or licensed in such sale referred to in state. To the foregoing clause (ii) shall not have been made for or on account best 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.Sel
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants to the Depositor, the Trustee and the Owners that as followsof the Startup Day:
(a) The Seller is a corporation limited partnership duly organized, formed and validly existing and in good standing under the laws of Delaware, governing its creation and is duly qualified to do business, existence and is in good standing, standing in every 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, unless conducted and to enter into and discharge its obligations under this Agreement and the failure other Operative Documents to so qualify would not have which it is 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 perform their respective obligations hereunderparty.
(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 corporate powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary corporate action, (iii) do action on the part of the Seller and will not contravene (1) violate the Seller’s organizational documents's Agreement 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 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 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 Sellerproperties.
(c) No authorization or approval or This Agreement and the other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Operative Documents to which it the Seller is a party or any other document to be delivered party, assuming due authorization, execution and delivery by it thereunder 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 parties hereto and thereto, each constitutes the legala valid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its the terms (hereof and thereof, except as enforceability the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and by general principles of equity, equity (whether considered in an a proceeding or action in equity or at law law).
(d) The Seller is not in default with respect to any order or equity)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) Sales made pursuant 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 will constitute or any other Operative Documents to which it is a valid sale, transfer, party or that would materially and assignment adversely affect the condition (financial or otherwise) or operations of the Transferred Receivables 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 Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivableis a party.
(f) [Intentionally omittedNo certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading.]
(g) The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is responsible in accordance with the Operative Documents or which are attributable to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to 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 pending or, fact known to the knowledge of Seller that materially adversely affects or in the Seller, threatened, action, investigation or proceeding affecting future may (so far as the Seller can now reasonably foresee) materially adversely affect the Seller or any of its subsidiaries before any court, governmental agency the Home Equity Loans or arbitrator which may have a Material Adverse Effectthe ownership interests therein represented by the Certificates that has not been set forth in the Registration Statement.
(h) No proceeds 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 Home Equity Loan (including the related Note) and such other items of the Trust Estate free and clear of any Purchase lien, charge, mortgage, encumbrance or rights of others, except as set forth in Section 3.04 (b) (ix) (other than liens which 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 Boardsimultaneously released).
(i) No transaction contemplated hereby requires compliance with Neither the Seller nor any bulk affiliate thereof will report on any financial statement any part of the Servicing Fee as an adjustment to the sales act or similar lawprice of the Home Equity Loans.
(j) Each Receivable characterized in 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 Seller Report federal, state or other written statement made by governmental authority 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, is owned (immediately prior to its sale hereunder) by the Seller 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 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 result 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 any action taken the transactions contemplated by the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred Receivable this Agreement and the Related Security and Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as Operative Documents on the result of any action taken by the Purchaser), and no effective financing 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 part of the Seller in accordance with and the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty performance by the Seller as to the priority, as against any other secured creditors of its obligations under this Agreement and such of the relevant Obligor, of any Underlying Inventory Security Interestother Operative Documents to which it is a party.
(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 The origination practices used by the Seller with respect to the Purchaser in connection with this Agreement is or will be accurate Home Equity Loans have been, in all material respects as of its date or (except as otherwise disclosed to respects, legal, proper, prudent and customary in the Purchaser at such time) as of the date so furnishedmortgage lending business.
(l) 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 concerning the Transferred Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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.
(qm) The Neither the Trustee nor 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 register the extent required by generally accepted U.S. accounting principles).
(r) The Seller is not, and is not controlled by, Trust as 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated company under the Investment Company Act of 1940, as amended.
(n) 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 pending insolvency.
(o) The 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, delay or defraud any of its creditors.
(q) No material adverse change affecting any security for the Offered Certificates has occurred prior to delivery 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 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 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 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. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delawarethe State of New Jersey, 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, unless qualified except where the failure to be so qualify qualified would not have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, Receivables or (iii) on the ability of the Seller or the Collection Agent to perform their respective obligations hereunderSeller.
(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 corporate powers, (ii) have been duly authorized by all necessary corporate actionaction on the part of the Seller, (iii) do not contravene (1A) the Seller’s organizational documents's charter or by-laws, (2B) any law, rule or regulation applicable to the Seller, (3C) any contractual restriction 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 's interest in the 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party this Agreement or any other document to be delivered by it thereunder except for the filing of financing statements which are referred to thereinthereunder.
(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 Seller, enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable subject to bankruptcy, insolvency, reorganization insolvency or other similar laws affecting the enforcement of creditors’ ' rights generally and to general principles of equity, equity (whether considered in an action a proceeding in equity or at law or equitylaw).
(e) Sales Each sale made pursuant to this Agreement will constitute a valid sale, transfer, transfer and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawarethe State of Delaware 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, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary action on the part of the Transferred ReceivablesSeller; 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 ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights generally and of creditors generally, (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law and (C) any notice, order, directive or equity).similar action by a federal banking regulatory authority that prohibits or enjoins performance of this Agreement by the Seller; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Transferred Mortgage Loans 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 related Transfer Agreement were made by or on behalf of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, 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 (i) a representation or warranty of the Transferor under the related Transfer Agreement and (ii) a representation or warranty of the Seller Report under this Agreement, the only right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller of the representations made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xv)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the Purchaser), Seller pursuant to Sections 1.04(b)(xi) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(xv) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xv)) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the PurchaserTransferor in the related Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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 the fact, condition or event constituting such breach also constitutes a breach of a 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 shall, in exchange for such substitute mortgage loan, provide the 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 warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the priority, as against any other secured creditors Transferred Mortgage Loans on the Transferred Mortgage Loan Schedule provides an accurate listing of the relevant ObligorTransferred Mortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Transferred Mortgage Loan on the extent that information contained therein Transferred Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 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 Purchaser 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 timeMortgagor’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 so furnished.
(l) The principal place of business recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located 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 specifically referred to in Section 5.01(b)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) 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. The Seller 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 not changed its name during full right to sell and assign the two years same to the Trustee;
(vi) Immediately prior to the date of this Agreement.
(m) The names transfer and addresses of all the Lock-Box Banks, together with the account numbers assignment of the Lock-Box Accounts at such Lock-Box BanksTransferred Mortgage Loans to the Depositor, are specified in Exhibit B (as the same may be updated from time 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 time pursuant transfer and sell each Transferred Mortgage Loan to Section 5.01(g)). The Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remittedDepositor free and clear, except as expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinderno prior holder of the related Mortgage, delay including the Seller, has done, by act or defraud creditors omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filed’s knowledge, (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 no foreclosure action is being contested in good faith and by proper proceedings, and 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 value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for 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).premises were intended;
(rix) The Seller 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 notsupervised 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 not controlled by, an a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company 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 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 origination subject to the Home Ownership and Equity Protection Act of 19401994 (15 USC §1602(c)), Regulation Z (12 CFR 220.32) or is exempt from all provisions any comparable state law;
(xv) None of such actthe 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.
(sc) The receivables credit Seller represents and collection policies and practices warrants to the Depositor upon the delivery to the Depositor on the Closing Date of the Originators attached hereto Originated Mortgage Loans originated or acquired by the Seller and listed on Schedule B hereto, but solely as Exhibit A are in effect to each Originated Mortgage Loan listed on Schedule B hereto, that, as of the date of this Agreement. 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.Cut-off Date:
(ti) No event or circumstance has occurred since The information set forth with respect to the date Originated Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of this Agreement that has a Material Adverse Effect.
(u) With the Originated Mortgage Loans, and the information with respect to each Transferred Receivable, Originated Mortgage Loan on the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution to Mortgage Loan Schedule is true and correct in all material respects at the capital of the Seller by the applicable Originator date or dates respecting which such information is given;
(ii) shall 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 purchased not been paid;
(iii) 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 Transferred Receivable from other hazards as are customary in the applicable Originator area where the Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Originated Mortgage Loan, the Mortgaged Property was in exchange for payment (made an area identified in the Federal Register by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration Federal Emergency Management Agency as having special flood hazards (and reasonably equivalent value, and each such sale referred to in the foregoing clause (ii) shall not have flood insurance has 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.
(vavailable) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.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. 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, validly existing and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not 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 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 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 corporate 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 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is this Agreement constitutes a party or any other document to be delivered by it thereunder 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 Seller, enforceable against the Seller in accordance with its terms terms, except that (except as i) the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization moratorium or other similar laws affecting the enforcement of creditors’ rights generally generally, and general (ii) the availability of equitable remedies may be limited by equitable principles of equity, whether considered in an action at law or equity)general applicability.
(eb) Sales made pursuant to The execution and delivery by the Seller of, and the performance by the Seller of its obligations under, this Agreement will constitute a valid salenot contravene any (i) provision of applicable law, transfer, and assignment of (ii) the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge organizational documents of the Seller, threatened(iii) any agreement or other instrument binding upon the Seller, action(iv) any judgment, investigation order or proceeding affecting decree of any governmental body, agency or court having jurisdiction over the Seller or any of its subsidiaries before and no consent, approval, authorization or order of, or qualification with, any court, governmental body or 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 required for 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, is owned (immediately prior to its sale hereunder) performance 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 Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of obligations under this Agreement.
(mc) The names Seller has, and addresses on the Delivery Date will have, good, marketable and unencumbered title to the Note, free and clear of all security interests, claims, liens, equities or other encumbrances, and the Lock-Box Bankslegal right and power, together with and all authorization and approval required by law (i) to enter into this Agreement, and (ii) to sell and transfer the account numbers Note to the Company. The sale and transfer of the Lock-Box Accounts at such Lock-Box Banks, are specified Note 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 accordance with this Agreement will convey to the terms Company good, marketable and unencumbered title to the Note, free and clear of Section 5.01(h) hereofall security interests, claims, liens, equities or other encumbrances.
(nd) None of Other than as disclosed to the Company in writing, the Seller has not engaged any broker, finder or any Originator other person acting in such capacity that is known by or uses any registered tradename or doing-business-as name.
(o) With respect entitled to any programs used in the servicing of the Receivables, no sublicensing agreements are necessary commission or fee in connection with the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound transactions contemplated 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Sale Agreement (Institutional Financial Markets, Inc.)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, together event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Related Security, is owned applicable Transfer Agreement and (immediately prior to its sale hereunderii) by a representation or warranty of 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 Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinunder this Agreement, the Related Security sole right or Collections with respect thereto is on file in remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any recording office except such as may be filed in favor applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with the Initial Purchase Agreementthis Section 1.04(b) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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, 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(miv) The names Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and addresses of all the Lock-Box Banks, together with Mortgaged Property has not been released from the account numbers lien of the LockMortgage, 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-Box Accounts at such Lock-Box Banksoff Date) the related Mortgage evidences a valid, are specified in Exhibit B subsisting, enforceable and perfected first lien on the related Mortgaged Property (as including all improvements on the same may be updated from time to time pursuant to Section 5.01(g)Mortgaged Property). The Locklien 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. In the case of approximately 98.12% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-Box Accounts are off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the only accounts into which Collections 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 Receivables are deposited or remittedthe 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 expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinderno prior holder of the related Mortgage, delay including the Seller, has done, by act or defraud creditors omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filed’s knowledge, (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 no foreclosure action is being contested in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).premises were intended;
(rix) The Seller 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 notsupervised 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 predatory and abusive lending laws;
(xii) Each Mortgage Loan is not controlled by, an a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company Act of 1940, or is exempt from all provisions of such act.Code and Treas. Reg. §1.860G-2;
(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. 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.
(uxiii) With respect to Pool 1 Mortgage Loans:
(a) No Mortgage Loan was originated in the State of Georgia;
(b) The applicable Servicers for each Transferred Receivable, the 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 (i) shall have received each Transferred Receivable acquired by it as has no reason to believe that any borrower will default under a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase pricePool 1 Mortgage Loan, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent valuethat foreclosure proceedings will be commenced with respect to any such Mortgage Loan, and within the six months immediately following the Closing Date;
(e) The outstanding Scheduled Principal Balance of each such sale referred to Pool 1 Mortgage Loan does not exceed the maximum original loan amount limitations set forth in the foregoing clause (ii) shall not have been made for ▇▇▇▇▇▇ ▇▇▇ Seller/Servicer Guide with respect to one-to-four family residential mortgage loans, whether first lien 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940subordinate lien mortgage loans, as amended.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. The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business, business and is in good standing, standing as a foreign limited liability company in every jurisdiction where the nature of its business requires it to be so qualified, unless except where the failure to be so qualify qualified would not 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 perform their respective obligations hereunderMaterial 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, Investments and Reinvestments: (i) are within the Seller’s corporate its organizational powers, ; (ii) have been duly authorized by all necessary corporate 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 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 the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the its due execution, delivery and performance by the Seller of the Agreement or any other Transaction Documents Document to which it is a party or any party, other document to be delivered by it thereunder except for than the filing of financing statements which are Uniform Commercial Code filings referred to thereinin Exhibit II to the Agreement, all of which shall have been filed on or before the Closing Date.
(d) This Each of the Agreement and each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller’s best knowledge, threatened, action, investigation threatened action or proceeding affecting the Seller or any of its subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator which may have a Material Adverse Effectarbitrator.
(hf) No proceeds of any Purchase Investment or Reinvestment will be used (i) to acquire any equity security of a class which that 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.
(ig) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
The Seller is the legal and beneficial owner of, and has good and marketable title to, the Pool Receivables, the Lock-Box Accounts (jand related lock-boxes) 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 and Related Security, is owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim Claim. Upon each Investment or Reinvestment, the Administrator (other than any Adverse Claim arising solely as on behalf of the result of any action taken by the Purchaser). When the Purchaser makes a Purchase it Purchasers) shall acquire a valid and enforceable perfected first priority ownership of or security interest in each Transferred Pool Receivable then existing or thereafter arising and in the Related Security Security, Collections and Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim Claim. The Agreement creates a valid and continuing ownership or security interest (other than any Adverse Claim arising solely as defined in the result of any action taken by the Purchaser), and no effective financing 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 applicable UCC) in favor of the Administrator in the Pool Assets and the Lock-Box Accounts (and related lock-boxes), which ownership or 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 accordance with the Initial Purchase Agreement, proper filing offices in favor the appropriate jurisdictions under applicable laws in order to perfect the ownership or security interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes) granted to the Administrator (on behalf of Purchaser in accordance with the Purchasers) hereunder. Other than the ownership or security interest granted to the Administrator (on behalf of the Purchasers) pursuant to this 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 PurchaserPool Assets, other than any UCC financing statement relating to the security interest granted to the Administrator (on behalf of the Purchasers) hereunder or that has been terminated. Nothing 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 original 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 4.01(j) shall constitute section above, each of which will contain a representation statement that “A purchase of or warranty 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 as to or the priority, as against any other secured creditors Administrator (on behalf of the relevant Obligor, of any Underlying Inventory Security InterestPurchasers).
(kh) Each Seller Report Information Package (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or one of its Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished 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 Administrator or such Purchaser Agent, as applicable, at such time) as of the date so furnished.
(li) 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 concerning the Transferred Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior Sections l(b) and 2(b) of Exhibit IV to the date of this Agreement.
(mj) 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 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 same may be updated from time to time pursuant to Section 5.01(g)). The Administrator in accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements. With respect to all Lock-Box Accounts (and related lock-boxes), the only accounts into which Collections Seller has delivered to the Administrator, on behalf of Receivables are deposited or remittedthe Purchasers, except as expressly permitted a fully executed Lock-Box Agreement pursuant to which the terms applicable Lock-Box Bank has agreed, following the occurrence and continuation of Section 5.01(ha Termination Event, to comply with all instructions given by the Administrator with respect to all funds on deposit in such Lock-Box 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) hereofare 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) The Seller is not 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 Conduit Purchaser.
(m) No proceeds of any Investment 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) None Each Pool Receivable included as an Eligible Receivable in the calculation of the Seller or any Originator Net Receivables Pool Balance is known by or uses any registered tradename or doing-business-as namean Eligible Receivable.
(o) With respect to any programs used in No event has occurred and is continuing, or would result from an Investment or Reinvestment or from the servicing application of the Receivablesproceeds therefrom, no sublicensing agreements are necessary in connection with the designation of that constitutes a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company Termination Event 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 sublicensingUnmatured Termination Event.
(p) The Seller has accounted for each sale of Transferred the Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaserother Purchased Assets in its books and financial statements as sales, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Sellerconsistent with generally accepted accounting principles.
(q) The Seller has (i) timely filed complied in all federal tax returns required material respects with the Credit and Collection Policy of the Originators with regard to be filed, (ii) timely filed all other material state and local tax returns, and (iii) paid or made adequate provision for each Receivable originated by 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)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 notset 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 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(1)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not controlled by, an “investment company,” or a company “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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawarethe jurisdiction of its organization, and is duly qualified has full power and authority to do business, enter into this Agreement and is in good standing, in every jurisdiction where consummate the nature of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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.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 to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller upon consummation of the Transaction Documents 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 sell and deliver the Purchased Interest to the Buyer pursuant to this Agreement;
(e) the sale of its portion of the 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 contract or agreement to which it is a party or any other document to be delivered by which it thereunder except for the filing of financing statements which are referred to therein.
(d) This Agreement and each or its portion 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.Purchased Interest is bound;
(f) [Intentionally omitted.]it has not sold or transferred its portion of the 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 Purchased Interest, or any portion thereof or any interest therein; and
(g) There is no pending or, to the knowledge of the Seller, threatened, action, investigation or proceeding affecting the Seller or neither it nor any of its subsidiaries before affiliates, nor any courtof their respective officers, governmental agency directors or arbitrator which may have a Material Adverse Effectemployees 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 this Agreement except for the brokers who are compensated in accordance with the terms of the Business Combination Transaction.
(h) No proceeds of any Purchase will be used (i) to acquire any equity security of it acknowledges that it is 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 sophisticated seller with respect to which the obligation to pay purchase, sale and valuation of securities such amount is adequately reserved against in accordance with as the Purchased Interest, the shares of Common Stock and to the extent required by generally accepted U.S. accounting principles).
(r) The Seller is notNew Parent Shares. Additionally, it acknowledges that it has adequate information concerning the Purchased Interest, the shares of Common Stock and the New Parent Shares, and is not controlled by, an “investment company” within the meaning business and financial condition of the Investment Company Act of 1940Partnership and its affiliates, or is exempt from all provisions of such act.
(s) The receivables credit the Issuer and collection policies and practices New Parent to make an informed decision regarding the sale of the Originators attached hereto as Exhibit A are in effect as Purchased Interest and the acquisition of the date shares of this Agreement. Since Common Stock and 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent valueNew Parent Shares, and each has independently and without reliance upon the Partnership, and based upon such sale referred information as it has deemed appropriate, made its own analysis and decision to in sell the foregoing clause (ii) shall not have been made for or on account Purchased Interest and acquire the shares of an antecedent debt owed by any Originator to Common Stock and the Seller and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy CodeNew Parent Shares.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Each of the Seller and each Selling Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of Delaware, the jurisdiction of its formation 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, unless except where the failure to so qualify would not 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 such Selling Subsidiary. The Seller owns all of the Collection Agent issued and outstanding shares eligible to perform their respective obligations hereundervote of the capital 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 '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 Seller’s such entity's corporate or other powers, (ii) have been duly authorized by all necessary corporate or other action, (iii) do not contravene (1i) the Seller’s organizational such entity's 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 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 Transferred Receivables pursuant to transactions contemplated by this Agreement). This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has been duly executed Selling Subsidiary Letter; 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 for the due execution, delivery and performance by the Seller of the Transaction Documents this Agreement, each Selling Subsidiary Letter to which it is a party or any other document or instrument to be delivered by it thereunder 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 financing statements which are the UCC Financing Statements referred to thereinin 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 is, and the Certificate and each of the other Transaction Documents to be Selling Subsidiary Letter when delivered by the Seller pursuant hereto constitutes hereunder will be, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, 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 as to the extent that the enforceability may be thereof is limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and general by equitable principles (regardless of equity, whether considered enforcement is sought in an action equity or at law or equitylaw).
(ei) Sales made pursuant to this Agreement will constitute a valid saleThe Consolidated balance sheet of the Seller and its Subsidiaries as at December 31, transfer1998, and assignment the related Consolidated statement of income and cash flows of the Transferred Receivables Seller and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young, independent public accountants, copies of which have been furnished to the PurchaserAgent, enforceable against creditors offairly 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 purchasers from(ii) since December 31, the Seller. The Seller shall have 1998, there has been no remaining property interest material adverse change in any Transferred Receivablesuch condition or operations.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened, or overtly threatened action, investigation suit, 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 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 may have defaults are not material to the business or operations of the Seller or the Seller and its Subsidiaries taken as a Material Adverse Effectwhole.
(hg) No proceeds of any Purchase or reinvestment will be used (i) by the Seller to acquire any equity security (other than the Common Stock of the Seller to the extent permitted under the Credit Agreement) of a class which that 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.
(h) Each Pool Receivable is (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, is Contract related thereto owned (immediately prior to its sale hereunder) by the Seller 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 the Purchaser). When the Purchaser makes Owner making such Purchase or 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 Transferred Pool Receivable then existing or thereafter arising and in the Related Security and Collections 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 the Purchaser), 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 Transferred Receivable, Contract or any interest therein, Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor of the Seller in accordance with the Initial Purchase AgreementCNAI, in favor of Purchaser as Agent, in accordance with this 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(ki) Each Seller Report (if prepared by the SellerSeller or any Selling Subsidiary, or to the extent that information contained therein is supplied by the SellerSeller or any Selling Subsidiary), information, exhibit, financial statement, document, book, record or report furnished or to be furnished 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, and no such document contains 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.
(lj) 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 concerning and documents evidencing Pool Receivables or the Transferred Receivables related Contracts are located at the address specified in Schedule IV hereto as such Schedule IV may be amended from time to time (or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior at such other locations, notified to the date of this AgreementAgent in accordance with Section 5.01(f), in jurisdictions where all action required by Section 6.05 has been taken and completed).
(mk) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts of the Seller and each Selling Subsidiary at such Lock-Box Banks, are specified in Exhibit B (Schedule I hereto as the same such Schedule I may be updated amended from time to time pursuant to Section 5.01(g)). The (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remitted, except as expressly permitted pursuant have been notified to the terms of Section 5.01(h) hereof.
(n) None of the Seller or any Originator is known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 principlesSection 5.03(d)).
(rl) The Neither the Seller nor any Affiliate of the Seller has any direct or indirect ownership or other financial interest in the Investor, the Agent or any "Original Bank" (as such term is notdefined in the Parallel Purchase Commitment).
(m) Each purchase of an Eligible Asset hereunder, and is not controlled byeach reinvestment of Collections in Pool Receivables made hereunder, an “investment company” 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, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, or is exempt from all provisions of such actas amended.
(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. 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.
(un) With respect to each Transferred ReceivablePool Receivable originally owed to any 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 (i) shall have received each Transferred by book entry or otherwise), no later than 30 days after the end of the calendar quarter during which such Pool Receivable acquired by it as a contribution was transferred to the capital of the Seller by the applicable Originator or (ii) shall have purchased pursuant to such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cashSelling Subsidiary Letter, deferred purchase price, or a combination thereof in an amount equal to at least the fair market value of such Pool Receivable which constitutes fair consideration and could reasonably equivalent value, and each be expected to result from arms-length negotiations between unaffiliated parties. Each such sale referred to in the foregoing clause (ii) shall transfer was not have been made for or on account of an antecedent debt owed by any Originator such Selling Subsidiary to the Seller and no such sale is transfer was made by the Selling Subsidiary (i) with the intent to hinder, delay or may be voidable defraud its creditors, (ii) for less than reasonably equivalent value, (iii) while the Selling Subsidiary was, or subject to avoidance under any section which rendered the Selling Subsidiary, insolvent, (iv) as a result of which the Federal Bankruptcy Code.
Selling Subsidiary was left with unreasonably small capital, or (v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under a result of which the Investment Company Act of 1940, Selling Subsidiary incurred debts beyond its ability to pay such debts as amendedthey matured.
Appears in 1 contract
Sources: Trade Receivables Purchase and Sale Agreement (Polyone Corp)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller (i) is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delawareits jurisdiction of incorporation as set forth in Exhibit D hereto (as such Exhibit D may be amended from time to time pursuant to Section 5.01(b)), (ii) has all corporate power and, unless the failure to do so would not have a Material Adverse Effect, has all licenses, authorizations, consents and approvals of all Official Bodies required to carry on its business in each jurisdiction in which its business is now and proposed to be conducted and (iii) 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, unless except, with respect to clause (iii), where the failure to so qualify would could not have reasonably be expected to result in 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 perform their respective obligations hereunderMaterial Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement Agreement, any other applicable Transaction Document to which it is a party 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 corporate action, (iii) do not contravene (1) the Seller’s organizational documentscharter or by-laws, (2) any law, rule or regulation Law applicable to the Seller, (3) any contractual restriction 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 Transferred Receivables and the Related Security pursuant to this Agreement). This Agreement Agreement, any other applicable Transaction Document and each of the other Transaction Documents documents to be delivered by the Seller pursuant hereto has it hereunder have 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 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, amendments thereto and terminations thereof referred to herein.
(d) Each of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by terms, subject to applicable bankruptcy, insolvency, reorganization moratorium or other similar laws Laws affecting the enforcement rights of creditors’ rights creditors generally and general equitable principles of equity, (whether considered in an action a proceeding at law or in equity).
(e) Sales Purchases and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The After giving effect to each Purchase and/or contribution hereunder, the Seller shall have no remaining property interest in any Transferred Receivable, transferred or purported to have been transferred in such Purchase and/or contribution.
(f) [Intentionally omittedThe balance sheets of the Parent and its Subsidiaries as at the later of (i) December 31, 2008, and (ii) the date of the most recent audited annual financial statements of the Parent delivered pursuant to Section 5.01(k)(ii), in each case, together with the related statements of income and retained earnings of the Parent and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Parent and its Subsidiaries as at such date and the results of the operations of the Parent and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied, and (ii) since such date there has been no material adverse change in the business, operations, property, prospects or financial or other condition of the Parent; it being understood that a breach of this clause (ii) shall occur if the audited annual financial statements for any year shall show such a material adverse change from the audited annual financial statements for the immediately prior year.]
(g) The Seller is not in violation or any order of any Official Body. There is no pending or, to the knowledge of the Seller, threatened, or threatened action, investigation or proceeding affecting the Seller or any of its subsidiaries Subsidiaries before any court, governmental agency or arbitrator Official Body which may have could reasonably be expected to result in a Material Adverse Effect.
(h) No proceeds of any Purchase will be used (i) to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act, (ii) 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 1934 or (iii) for any other purpose the purpose, whether immediate, incidental or ultimate, that violates applicable law, Law including Regulation G U or U X issued by the Board of Governors of the Federal Reserve BoardSystem of the United States.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar lawLaw.
(j) Each Receivable sold or contributed by the Seller and characterized in any Seller Servicer 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 Servicer Report or other statement(or, if applicable, as of a date certain specified in such report), an Eligible Receivable. 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 or accepts a contribution hereunder, it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial Originator 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(k) Each Seller Servicer 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 (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 furnishedfurnished (or, as applicable, as of a date certain specified in such report), 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 make the 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). The Seller is located in the jurisdiction of incorporation set forth in Exhibit D hereto for the purposes of Section 9-307 of the UCC as in effect in the State of New York; and the office in the jurisdiction of incorporation of the Seller 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 Exhibit D hereto (in each case as such Exhibit D may be amended from time to time pursuant to Section 5.01(b)). The Seller has not changed its name during the two years prior to the date of this Agreementsince January 1, 2005, except as set forth on Exhibit D hereto.
(m) The names and addresses of all the Lock-Box Deposit Banks, together with the post office boxes and account numbers of the Lock-Box Accounts Boxes and the Deposit Accounts, respectively, at such Lock-Box Banks, Deposit Banks are specified in Exhibit B (as the same may be updated amended from time to time pursuant to Section 5.01(g)). Within thirty (30) days of the Closing Date, each Seller has instructed all related Obligors to make payments related to the Receivables into either a Lock-Box or a Deposit Account specified in Exhibit B (as the same may be amended from time to time pursuant to Section 5.01(g)). The Lock-Box Boxes and the Deposit Accounts set forth on Exhibit B (as the same may be amended from time to time pursuant to Section 5.01(g)) are the only post office boxes and bank accounts into which Obligors have been instructed to make payments on the Receivables and into which Collections of such Receivables are to be deposited or remitted, except as expressly permitted pursuant to the terms of Section 5.01(h) hereof.
(n) None of Except as set forth in Exhibit D hereto, the Seller or any Originator is not known by or uses and does not use any registered tradename or doing-business-as name.
(o) On any date of each Purchase hereunder by the Purchaser, the Seller is Solvent before and will be Solvent before and will be Solvent after giving effect to such Purchase.
(p) 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 Servicer pursuant to Section 6.01 so that such new Collection Agent Servicer shall have the benefit of such programs (it being understood that, however, the Collection AgentServicer, if other than IR Company or an affiliate thereofthe Parent, 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 Parent (on behalf of such license either (i) require the consent itself and each of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensingOriginators)).
(pq) The sale 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.
(qr) 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, 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 principlesGAAP).
(rs) No event has occurred and is continuing that constitutes an Event of Termination or an Incipient Event of Termination.
(t) Since the Closing Date, there have been no material changes in the Credit and Collection Policy other than in accordance with the RPA. It has at all times complied with the Credit and Collection Policy in all material respects with regard to each Receivable originated or serviced by it.
(u) The Seller has at all times complied with the covenants and obligations set forth in its governing documents and herein.
(v) 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.
(sw) The receivables credit and collection policies and practices Each of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit representations 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (warranties made by the Seller to contained in the applicable Originator Transaction Documents is true, complete and correct in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration all respects and reasonably equivalent valueit hereby makes each such representation and warranty to, and each such sale referred to for the benefit of, the Agent, the Investors and the Banks as if the same were set forth in the foregoing clause (ii) 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 Codefull herein.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (DST Systems Inc)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller represents and warrants as followsto each Underwriter that:
(a) The Registration Statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including the Prospectus and such amendments thereto as may have been required on the date of the applicable Terms Agreement, relating to the Notes, has been filed with the Commission and such Registration Statement as amended has become effective. The conditions to the use of a shelf registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, have been satisfied with respect to the Seller and the Registration Statement.
(b) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Seller, threatened by the Commission, and on the effective date of the Registration Statement, the Registration Statement and the Base Prospectus conformed in all respects to the requirements of the Act and the rules and regulations of the Commission under the Act (the “Rules and Regulations”), and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the date of the applicable Terms Agreement, the Registration Statement and the Prospectus conform, and at the time of filing of the Prospectus pursuant to Rule 424(b) such documents will conform in all respects to the requirements of the Act and the Rules and Regulations, and on the Closing Date the Registration Statement and the Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, and neither of such documents will include on the date of the applicable Terms Agreement and on the Closing Date any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Seller in writing by such Underwriter through the Representative expressly for use therein.
(c) As of the Closing Date, the representations and warranties of the Seller, in each of its capacities under each of the Basic Documents to which it is a corporation party, will be true and correct in all material respects as of the date such representation or warranty was given.
(d) The Seller has been duly organized, organized and is validly existing and as a limited liability company, in good standing under the laws of the State of Delaware, with power and is authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and to execute, deliver and perform this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by this Agreement and the applicable Terms Agreement and to consummate the transactions contemplated by this Agreement and the applicable Terms Agreement and has been duly qualified to do business, for the transaction of business and is in good standingstanding under the laws of each other jurisdiction in which it owns or leases properties, in every jurisdiction or conducts any business, so as to require such qualification, other than where the nature of its business requires it failure to be so qualified, unless the failure to so qualify qualified or in good standing would not have a material adverse effect on the Seller or its subsidiaries, taken as a whole.
(e) As of the Closing Date, the Notes have been duly authorized, and when executed, issued and delivered pursuant to the Indenture, duly authenticated by the Indenture Trustee and delivered by the Seller to the Underwriters pursuant to this Agreement, will be duly and validly executed, authenticated, issued and delivered and entitled to the benefits provided by the Indenture; and the Notes and the Basic Documents conform to the descriptions thereof in the Prospectus in all material respects.
(f) No consent, approval, authorization or order of, or filing with, any court or governmental agency or governmental body is required to be obtained or made by the Seller for the consummation of the transactions contemplated by this Agreement, the applicable Terms Agreement or any Basic Document, except such as have been obtained and made under the Act, such as may be required under state securities laws and the filing of any financing statements required to perfect the Issuer’s interest in the Receivables or the Indenture Trustee’s interest in the Collateral.
(g) The Seller is not in violation of its organizational documents nor in default in its performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a party or by which it or its properties are bound which would have a material adverse effect on the transactions contemplated herein or in the Basic Documents.
(h) The execution, delivery and performance of any of the Basic Documents by the Seller and compliance with the terms and provisions thereof will not result in a material breach or violation of any of the terms and provisions of, or constitute a material default under, any statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller, or any of its respective properties or any agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the properties of the Seller is subject, or the organizational documents of the Seller and the Seller has full power and authority to enter into the Basic Documents.
(i) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of the Seller, threatened to which any of the Seller and its subsidiaries is or may be a party or to which any property of the Seller and its subsidiaries is or may be the subject which, if determined adversely to the Seller, could individually or in the aggregate reasonably be expected to have a material adverse effect on (i) the interests general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the Purchaser hereunderSeller and its respective subsidiaries, as applicable, taken as a whole or (ii) the collectibility interests of the Transferred Receivables, or (iii) the ability holders of the Seller Notes; and there are no contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Collection Agent to perform their respective obligations hereunderBasic Prospectus which are not filed or described as required.
(bj) The execution, delivery and performance by the Seller of this 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 corporate 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 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 Transferred Receivables pursuant to this Agreement). This Terms Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the due execution, delivery and performance by the Seller . Each of the Transaction Basic Documents to which it is a party or any other document to be delivered by it thereunder except for the filing of financing statements which are referred to therein.
(d) This Agreement has been duly authorized and, when executed and each of the other Transaction Documents to be delivered by the Seller pursuant hereto constitutes the legalSeller, will constitute a valid and binding obligation agreement of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Underwriting Agreement (Bank One Auto Securitization LLC)
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants with and to the Issuer, the Indenture Trustee, the Servicer, the Securities Insurer and the Securityholders as followsof the Closing Date:
(a) The Seller is a corporation duly organized, validly existing existing, and in good standing under the laws of Delaware, the State of Nevada and has all licenses necessary to carry on its business as now being conducted and is duly licensed, qualified to do business, and is in good standing, standing in every jurisdiction where each Mortgaged Property State if the nature laws of its such state require licensing or qualification in order to conduct business requires it to be so qualified, unless the failure to so qualify would not 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 type conducted by the Seller or and perform its obligations as Seller hereunder; the Collection Agent Seller has the power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder.
(b) The in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Seller and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action of the Seller; this Agreement evidences the valid, binding and enforceable obligation of the Seller; and all requisite action has been taken by the Seller to make this Agreement valid, binding and enforceable upon the Seller in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium and other, similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equity;
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which 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 delivered 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 it hereunder, including this Agreement and such other documents on the Seller’s sale part of Receivables hereunder the Seller and the Seller’s use 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 proceeds of Purchases, transactions contemplated by this Agreement will not result in (i) are within the breach of any terms or provisions of the Articles of Incorporation or Bylaws of the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate actionthe breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which the Seller, or its property is subject, or (iii) do not contravene (1) the Seller’s organizational documents, (2) violation of any law, rule rule, regulation, order, judgment or regulation applicable decree to the Seller, (3) any contractual restriction binding on or affecting which the Seller or its respective property is subject;
(d) Neither this Agreement nor the Prospectus nor any statement, report or other document prepared by the Seller and furnished or to be furnished 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 herein or therein not misleading;
(4e) There is no action, suit, proceeding or investigation pending or, to the best of the Seller's knowledge, threatened against the Seller which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Seller or in any material impairment of the right or ability of the Seller to
(f) The Seller is not in default with respect to any order or decree of any court or any order, writregulation or demand of any federal, judgmentstate, awardmunicipal or other governmental agency, injunction which default might have consequences that would materially and adversely affect the condition (financial or decree binding on otherwise) or affecting operations of the Seller or its propertyproperties 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 (iv) do not result in or require marketable title to each Initial Home Loan and such other items comprising the creation corpus of the Trust free and clear of any lien, mortgage, pledge, charge, security interest or other charge or encumbrance upon or with respect encumbrance;
(h) As of any Subsequent Transfer Date, the Issuer will have good and marketable title to any of its properties (except for each Subsequent Home Loan transferred on such date and such other items comprising the transfer corpus of the Seller’s Trust free and clear of any lien, mortgage, pledge, charge, security interest in the Transferred Receivables pursuant to this Agreement). This Agreement or other encumbrance; and
(i) The transfer, assignment and each conveyance of the other Transaction Documents to be delivered Home Loans, the Debt Instruments and the Mortgages 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables or any Subsequent Transfer Agreement are not subject to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest bulk transfer laws or any similar statutory provisions in effect in any 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 lawjurisdiction.
(j) Each Receivable characterized in The Seller shall provide each Rating Agency and the Securities Insurer with notice and a copy of any Seller Report or other written statement made by or on behalf amendment to the Articles of Incorporation of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, as of promptly after the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestfiling thereof.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Investment Corp)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business, business and is in good standing, standing as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified, unless except where the failure to be so qualify qualified would not 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 perform their respective obligations hereunderMaterial 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 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 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 the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the its due execution, delivery and performance by the Seller of the Agreement or any other Transaction Documents Document to which it is a party or any party, other document to be delivered by it thereunder except for than the filing of financing statements which are Uniform Commercial Code filings referred to thereinin 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 each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ ' rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller's best knowledge, threatened, action, investigation threatened action or proceeding affecting the Seller or any of its subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator which may have a Material Adverse Effectarbitrator.
(hf) No proceeds of any Purchase purchase or reinvestment will be used (i) to acquire any equity security of a class which that 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.
(ig) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized in any The Seller Report or other written statement made by or on behalf is the legal and beneficial owner 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 Pool Receivables and Related Security, is owned (immediately prior to its sale hereunder) by the Seller 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 the each Purchaser). When the Purchaser makes a Purchase it ) shall acquire a valid and enforceable perfected first priority undivided percentage ownership or security interest, to the extent of the Purchased Interest, in each Transferred Pool Receivable then existing or thereafter arising and in the Related Security Security, Collections and Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim Claim. The Agreement creates a security interest in favor of the Administrator (other than 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 Adverse Claim arising solely as the result of any action taken by the Purchaser), and no Claims. No effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security or 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 Seller in accordance with pursuant to the Initial Purchase Agreement, in favor Sale Agreement and the Administrator (for the benefit of Purchaser in accordance with this 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 the Purchaser. Nothing Person in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestsuch Pool Asset.
(kh) Each Seller Report Information Package (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished 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, and does not and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
(li) The Seller's (x) principal place of business and chief executive office of the Seller and the office where the Seller it keeps its records concerning the Transferred Receivables are and (y) "location" (as such term is used in the UCC), are, in each case, located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior Sections 1(b) and 2(b) of Exhibit IV to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized, incorporated and validly existing and in good standing under the laws of Delaware, 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 qualifiedqualified (including without limitation, unless the State of Delaware) except to the extent that the failure so to be so qualify qualified would not have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) reasonably be expected to materially adversely affect the collectibility of the Transferred Receivables, Receivables or (iii) the ability of the Seller or the Collection Agent to perform their respective its obligations hereunderunder 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 's sale and contribution of Receivables hereunder and the Seller’s 's use of the proceeds of Purchases, (i) are within the Seller’s 's corporate powers, (ii) have been duly authorized by all necessary 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party this Agreement or any other document to be delivered by it thereunder 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 thereinherein (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 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omittedThe balance sheets of the Seller and its subsidiaries as at December 31, 2000, and the related statements of income and retained earnings of the Seller and its 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 subsidiaries as at such date and the results of the operations of the Seller and its subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied, and since December 31, 2000 there has been no material adverse change in the business, operations, property or financial or other condition of the Seller.]
(g) There is no pending or, to the knowledge of the Seller, threatened, action, investigation or threatened action or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effectmaterially adversely affect the financial condition or operations of the Seller or any of its subsidiaries 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.
(h) No proceeds The use of all funds acquired by the Seller under this Agreement will not conflict with or contravene any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 Regulations T, U and X of the Securities Exchange Act Board 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 Governors of the Federal Reserve BoardSystem 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.
(j) Each Receivable characterized in any Seller Report or other written statement made purported to be sold 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, hereunder is an Eligible Receivable. Each , 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 Transferred 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 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 the Seller in accordance with the Initial 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) 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 make the 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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 The Seller or any Originator is not known by or uses and does not use any registered 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 6.01(b) so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the -- ----- ---------- ---- Collection Agent, if other than IR Company or an affiliate thereofthe Seller, shall be required to be bound by a confidentiality agreement reasonably acceptable to the applicable OriginatorSeller), 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 sale 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.
(q) The If less than all of the Receivables of the Seller has (i) timely filed all federal tax returns required have been transferred to the Purchaser pursuant to this Agreement, no selection procedure was utilized by the Seller in selecting the Contributed Receivables to be filed, (ii) timely filed all other material state and local tax returns, and (iii) paid or made adequate provision for transferred to the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge Purchaser hereunder 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 adverse to the extent required 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 generally accepted U.S. accounting principles)the Seller.
(r) The Seller is notImmediately prior to the effectiveness of this Agreement the Purchaser has no Debt, and is Adverse Claims on any of its assets, liabilities (including contingent obligations) other than accrued administrative expenses (including, without limitation, accrued rent) in an aggregate amount not controlled by, an “investment company” within the meaning of the Investment Company Act of 1940, or is exempt from all provisions of such actto exceed $20,000.
(s) The receivables credit and collection policies and practices of amendment to the Originators attached hereto Credit Facility referred to in Section 3.01(j) hereof has been executed by each Loan Party (as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes defined in the Credit Facility) and Collection Policy other than in accordance with this Agreement.
lenders constituting Required Lenders (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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amendedCredit Facility).
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Lexmark International Inc /Ky/)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as followsof the Closing Date:
(ai) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do businessenter into and perform its obligations under this Agreement, the Assignment and is in good standing, in every jurisdiction where Assumption Agreement and the nature B▇▇▇ of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, Sale;
(ii) The execution and delivery by the collectibility 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 Transferred ReceivablesSeller; neither the execution and delivery of this Agreement, the Assignment and 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 a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 Transferred Receivables pursuant to this Agreement). This , the Assignment and Assumption Agreement and each the B▇▇▇ of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for in the due executioncase of this Agreement, delivery and performance by the Seller of the Transaction Documents to which it is constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (respective terms, except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement, the Assignment and Assumption Agreement or arbitrator the B▇▇▇ of Sale or (B) with respect to any other matter which may have a Material Adverse Effectin 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, the Assignment and Assumption Agreement or the B▇▇▇ of Sale.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans 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 Transfer Agreement were 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 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 Report under this Agreement, the sole right or other statement, an Eligible Receivable. Each Transferred Receivable, together remedy of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller 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. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the PurchaserSeller pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(xviii) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(xii), in favor of Purchaser in accordance with this Agreement1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and 1.04(b)(xviii)) are applicable only to facts, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 timeMortgagor’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 so furnished.
(l) The principal place of business recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located 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 specifically referred to in Section 5.01(b)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. The Seller 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 not changed its name during full right to sell and assign the two years same to the Trustee;
(vi) Immediately prior to the date of this Agreement.
(m) The names transfer and addresses of all the Lock-Box Banks, together with the account numbers assignment of the Lock-Box Accounts at such Lock-Box BanksMortgage Loans to the Depositor, are specified in Exhibit B (as the same may be updated from time 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 time pursuant transfer and sell each Mortgage Loan to Section 5.01(g)). The Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remittedDepositor free and clear, except as expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such programs (it being understood thatmortgagee Title Insurance Policy and no prior holder of the related Mortgage, howeverincluding the Seller, has done, by act or omission, anything that would impair the Collection 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 coverage of such license either mortgagee Title Insurance Policy;
(iviii) require To the consent best of the licensor for Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any sublicensing thereof or (ii) prohibit any such sublicensingMortgage Loan.
(pix) The sale There is no proceeding pending for the total or partial condemnation of Transferred Receivables 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;
(x) 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;
(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 Seller to the Purchaser Secretary of Housing and Urban Development pursuant to this AgreementSections 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 other transactions between the Seller applicable predatory and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors abusive lending laws;
(xiii) As of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filedClosing Date, (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 each Mortgage Loan 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 a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company Act of 1940, 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 exempt from all provisions of such act.a qualified mortgage for a temporary period);
(sxiv) The receivables credit and collection policies and practices As of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Since the date of this AgreementClosing Date, there have been no material changes in the Credit and Collection Policy Mortgage Loan provides for interest 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 at either (i) shall have received each Transferred Receivable acquired by it as a contribution to single fixed rate in effect throughout the capital term of the Seller by the applicable Originator Mortgage Loan or (ii) shall have purchased such Transferred Receivable from a single “variable rate” (within the applicable Originator meaning of Treas. Reg. §1.860G-1(a)(3)) in exchange for effect throughout the term of the Mortgage Loan;
(xv) As of the Closing Date, based on delinquencies in payment (made by on the Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Mortgage Loan prior to the next scheduled payment date on such Mortgage Loan;
(xvi) No Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cashfederal, deferred purchase price, state or local predatory or abusive lending law (or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent valuesimilarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, and each such sale referred to in the foregoing clause (ii) shall not have been made for points and/or fees); no Mortgage Loan originated on or on account of an antecedent debt owed by any Originator after November 27, 2003 is a “High-Cost Home Loan” subject to the Seller and New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no such sale Mortgage Loan is or may be voidable or a “High-Cost Home Loan” subject to avoidance under any section of the Federal Bankruptcy Code.
New Mexico Home Loan Protection Act (v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.N.M.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, Connecticut and is duly qualified to do business, and is in good standing, in every other jurisdiction where in which the nature of its business requires it failure to be so qualified, unless the failure qualified could reasonably be expected to so qualify would not 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 perform their respective obligations hereunderMaterial Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement and the all other documents Transaction Documents to be delivered by it hereunderit, 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 corporate action, (iii) do not contravene (1i) the Seller’s organizational documents's charter or by-laws, (2ii) any law, rule or regulation applicable to the Seller, (3iii) any contractual restriction 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 upon or with respect to any of its properties (except other than in favor of the Agent for the transfer benefit of the Seller’s interest in Owners with respect to the Transferred Receivables pursuant to this Agreementand the Related Security and Collections associated therewith); and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has which it is a party have 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 for the due execution, delivery and performance by the Seller of the this Agreement, any Transaction Documents to which it is a party Document or any other document or instrument to be delivered by it thereunder hereunder, except for (i) such items that have been obtained and are in full force and effect and (ii) the filing of the UCC financing statements which are referred to therein.described in Schedule I.
(d) This Agreement and each of the other Transaction Documents to be Document or instrument delivered by the Seller pursuant hereto constitutes it hereunder constitute the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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 sale of Percentage Interests 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) by it to acquire any security in any transaction which is subject to Section 13 or 14 of such the Securities Exchange Act or (iii) for any other purpose that violates applicable lawof 1934, including Regulation G or U of the Federal Reserve Boardas amended.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(jf) 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 any contract related thereto, and the Related SecurityCollateral shall, is at all times, be owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as created by this Agreement, and upon each purchase and reinvestment, the Owner making such purchase or reinvestment, as the result of any action taken by 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 Percentage Interest in each Transferred Receivable then existing or thereafter arising and in the Related Security (other than Security Deposits) and Collections with respect thereto thereto, free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as the result of any action taken by the Purchaser), and no provided hereunder. No effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security Security, the Collections or Collections the Collateral 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 Seller in accordance with Purchaser relating to this Agreement or the Initial Purchase and Sale 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(kg) Each Seller Report (if prepared by the Seller, At all times on or prior to the extent that information contained therein is supplied by Termination Date, the Seller)Coverage Ratio shall equal or exceed 102%.
(h) No Investor Report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Seller or the Servicer to the Purchaser Agent or any Owner in connection with this Agreement is or will 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 no such document contains or will contain any material misstatement of fact or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading. Any Receivable described as an Eligible Receivable in any Investor Report or such other information, exhibit, financial statement, document, book, record or report satisfies the requirements of the definition of "Eligible Receivable." WMECO and the Servicer have management information systems that are adequate to generate reliable statistical information with respect to the Receivables, including such information as is required to be delivered pursuant to the terms of this Agreement.
(li) The principal place of business and chief executive office of the Seller and WMECO and the office offices where the Seller and WMECO keeps its records concerning all of the Transferred Receivables Records are located at the address addresses specified in Schedule IV (or addresses referred at such other locations as to which the notice and other requirements specified in Section 5.01(b6.09 shall have been satisfied). WMECO has places of business in more than one town in Massachusetts.
(j) All Obligors have been (or, in the case of Obligors with respect to Unbilled Receivables, will be) instructed to make all payments in respect of Receivables to WMECO's post office box in Hartford, Connecticut or to a Payment Center, and such payments are (i) processed by the Servicer in Wethersfield, Connecticut and (ii) deposited to the Collection Account within one Business Day of the Servicer's receipt thereof. The Seller has not changed its name during the two years prior will make commercially reasonable efforts to prevent funds other than Collections from being deposited to the date Collection Account.
(k) All Obligors (other than Obligors in respect of this AgreementUnbilled Receivables) are listed on the General Trial Balance. The methodology for determining the Outstanding Balance of Unbilled Receivables is accurately described in Exhibit B, and such description does not omit any fact necessary to make the statements contained therein not misleading. The Outstanding Balance of Unbilled Receivables shall be calculated in accordance with the methodology described in Exhibit B.
(l) Except as described in Schedule III, neither the Seller nor WMECO has any trade names, fictitious names, assumed names or "doing business as" names other than (with respect to WMECO only) those names with respect to which it has satisfied its obligations under Section 6.09.
(m) The names and addresses of all the Lock-Box Banks, together with the account numbers Seller's pro forma balance sheet as of the Lock-Box Accounts date of this Agreement, certified by its chief financial officer, chief accounting officer, Treasurer or Assistant Treasurer, copies of which have been furnished to the Purchaser and the Agent, fairly presents the Seller's assets and liabilities 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) hereofdate.
(n) None The terms of the Seller Receivables have not been extended or any Originator is known by or uses any registered tradename or doing-business-modified, except as namepermitted under the Credit and Collection Policy.
(o) With respect The Credit and Collection Policy has not been materially changed in any way which might reasonably lead to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sublicensingMaterial Adverse Effect.
(p) The No use of any proceeds of any sale of Transferred Receivables Percentage Interests by the Seller to will conflict with or contravene any of Regulations G, T, U and X promulgated by 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.
(q) The Seller has (i) timely filed all federal tax returns required obtained legal and equitable title to be filed, the Receivables and Related Security and has the legal right to sell such Receivables and such Related Security free and clear of any Adverse Claims (other than in favor of the Agent either directly or as the assignee of the Seller) and (ii) timely filed all other material state and local tax returnsgiven reasonably equivalent value to WMECO for such transfer, 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 no 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. 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) transfer shall have received each Transferred Receivable acquired by it as a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) shall not have been made for or on account of an antecedent debt owed by any Originator WMECO to the Seller and no such sale is or may shall be voidable or subject to avoidance under any section Section of the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101 et seq.), as amended (the "Bankruptcy Code").
(vr) Each Receivable On the date of the first purchase hereunder (both before and after giving effect to the purchase on such date), each of the Seller and WMECO have assets which are greater than its liabilities, and is an “eligible asset” able to pay its debts as defined in Rule 3a-7 promulgated under they become due.
(s) The authorized capital stock of the Investment Company Act Seller consists of 1940twenty thousand (20,000) shares of common stock, as amendedwithout par value ("Seller Common Stock"), one hundred shares of which are currently issued and outstanding. All of such outstanding shares of Seller Common Stock are validly issued, fully paid and nonassessable and are owned (beneficially and of record) by WMECO.
Appears in 1 contract
Sources: Receivables Purchase Agreement (North Atlantic Energy Corp /Nh)
Representations and Warranties of the Seller. The Seller represents makes in its capacity as Seller and warrants Servicer the following representations and warranties to the Purchaser as followsof the date hereof and the Purchase Date:
(a) The Seller It is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, the jurisdiction of its incorporation and is duly qualified to do business, and is in good standing, standing in every each jurisdiction where the nature of its business requires it failure to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or (iii) the qualified could materially adversely affect its ability of the Seller or the Collection Agent to perform their respective 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 's use of the proceeds of Purchasesthe Purchase, (i) are within the Seller’s 's corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1i) the Seller’s organizational documents, 's articles of incorporation or by-laws or (2ii) any law, rule law or regulation applicable to the Seller, (3) any contractual restriction 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 Transferred Receivables pursuant to this Agreement). This Agreement properties; and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has been duly executed 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party Sale Documents, or any other document to be delivered for the perfection of or the exercise by it thereunder the Purchaser of its rights and remedies under the Sale Documents, except for the filing of the financing statements which are or other documents referred to thereinin Section 4.1.2 and except for compliance with Section 4.1.11.
(d) This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto Each Sale Document constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened, action, investigation or threatened action or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effectmaterially 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.
(hf) No proceeds The Seller is the legal and beneficial owner of any Purchase the Receivables, the Related Security and Collections, each Purchased Receivable 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 ison 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 date of such Seller Report or other statementPurchase, an Eligible Receivable. Each Transferred Receivable, together with the Purchaser will acquire a valid ownership interest in the Purchased Receivables and in the Related SecuritySecurity and the Collections with respect thereto, is owned (immediately prior to its sale hereunder) by and the Seller 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j.
(g) shall constitute a representation or warranty The information to be provided by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(k) Each Seller Servicer for use in each Servicer Report (if prepared by the Seller, or to the extent that under Section 5.5 and all information contained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report and Sale Documents furnished or to be furnished 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 furnisheddate.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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).
(rh) The Seller is not, treating the sale and is not controlled by, an “investment company” within assignment to the meaning Purchaser under this Agreement of the Investment Company Act of 1940Purchased Receivables, or is exempt from all provisions of such act.
(s) The receivables credit Related Security and collection policies and practices of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. 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 Collections as a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange sale for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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 Codeall purposes.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Sale Agreement (Chrysler Financial Corp)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it as presently conducted and to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans contained 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 Transfer Agreement were 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 Receivablethe Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. Each Transferred Receivable, together with The representations and warranties of 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred Receivable and the Related Security and Collections Transferor with respect thereto free and clear to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser)fact, and no effective financing statement condition or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security or Collections event with respect thereto is on file in any recording office except such as may be filed in favor to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller in accordance with Transferor under the Initial Purchase AgreementTransfer Agreement or Bring Down Letter (whether or not such fact, in favor of Purchaser in accordance with this Agreement, condition 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 event would also constitute a representation or warranty of the Seller under this Agreement) the only rights or remedies of the Depositor with respect to a breach by the Seller as of such representation and warranty shall be first, the right to enforce the priority, as against any other secured creditors obligations of the relevant ObligorTransferor 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 Underlying Inventory Security Interest.
(k) Each right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller Report (if prepared by under the Seller, Sale Agreement with respect to such representation 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 warranty. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. In furtherance of the above, the Seller expressly acknowledges that 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 contractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in connection 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 this Agreement 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 or will be accurate true and correct in all material respects as of its at the date or (except as otherwise disclosed to the Purchaser at dates respecting which such time) as of the date so furnished.information is given;
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 As of the Seller.Closing Date, no Mortgage Loan is in foreclosure;
(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 As of the payment of all taxesClosing Date, assessments and other governmental charges (other than any tax, assessment or governmental charge which each Mortgage Loan 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” a "qualified mortgage" 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 Section 860G of the Originators attached hereto Code (as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreementdetermined without regard to Treas.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Ownit Mortgage Loan Trust, Series 2005-4)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(to the Buyers that at the Transfer Date: a) The Seller it is a corporation duly organized, validly organized and existing and in good standing under the laws of Delawarethe Grand Duchy of Luxembourg and has the corporate power and authority to enter into and perform its obligations under this Agreement, 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, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or (iii) the ability obligations of the Seller or the Collection Agent to perform their respective obligations hereunder.
(under this Agreement are legal, valid, binding and enforceable; b) The the execution and the performance of this Agreement by the Seller have been duly authorized by the Seller, and no further corporate action on the part of the Seller is necessary to authorize the entry into and/or the performance of this Agreement; c) its execution, delivery and performance by of its obligations under this Agreement and the consummation of the Transfer does not and will not violate any law, regulation, rule, order or judicial or administrative decision of the Grand Duchy of Luxembourg or the United States of America or any state or other subdivision thereof or any other country or of any regulatory authority (including the Financial Industry Regulatory Authority and any stock exchange); d) in connection with the Transfer, the Seller has complied and will comply with all applicable laws of any relevant jurisdiction and with the rules, regulations or decrees of any governmental, regulatory or other relevant body (including the Financial Industry Regulatory Authority) to which such the Seller is subject and will not take any action that would subject any Party to liability, penalty or forfeiture under any such laws, rules, regulations or decrees of any governmental authority; e) the execution, performance and delivery 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 Transfer does not and will not conflict with, or result in any violation of Purchasesor default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or loss of a material benefit under, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1a) the Seller’s organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction binding on or affecting documents of the Seller or its property or (4b) any ordermaterial agreement, writ, judgment, award, injunction document or decree binding on or affecting other instrument to which 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 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 byCompany is subject, and no notice to consent, approval, license, permit, order or authorization of, or registration, declaration or filing with, any governmental authority entity or regulatory body other third party is or will be required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered obtained or made by it thereunder except for the filing of financing statements which are referred or with respect 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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 courtthe Company, 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as consummation of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(m) The names and addresses of all the Lock-Box BanksTransfer, 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company those that have been made 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 sale of Transferred Receivables by the Seller to the Purchaser otherwise contemplated 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 Agreement (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 right of holders 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. 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 senior secured notes issued by it as a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.Atento Luxco 1
Appears in 1 contract
Sources: Share Transfer Agreement (HPS Investment Partners, LLC)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, Massachusetts and is duly qualified to do business, and is in good standing, in every other jurisdiction where in which the nature of its business requires it failure to be so qualified, unless the failure qualified could reasonably be expected to so qualify would not 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 perform their respective obligations hereunderMaterial Adverse Effect.
(b) The execution, delivery and performance by the Seller of this Agreement and the all 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 corporate action, (iii) do not contravene (1i) the Seller’s organizational documents's charter or by-laws, (2ii) any law, rule or regulation applicable to the Seller, (3iii) any contractual restriction 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 upon or with respect to any of its properties (except other than in favor of the Agent for the transfer benefit of the Seller’s interest in Owners with respect to the Transferred Receivables pursuant to this Agreementand the Related Security and Collections associated therewith); and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This The 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party this Agreement or any other document or instrument to be delivered by it thereunder hereunder, except for the filing of the UCC financing statements which are referred to therein.described in Schedule I.
(d) This Agreement and each of the other Transaction Documents to be document or instrument delivered by the Seller pursuant hereto it hereunder constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales made pursuant to this Agreement will constitute a valid saleThe consolidated balance sheets of each of the Parent and the Seller as at December 31, transfer1995, and assignment the related statements of income, shareholders' equity and cash flows for the fiscal year then ended, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of the Transferred Receivables to Parent and Seller and their consolidated subsidiaries as at such date and the Purchaserconsolidated results of the operations of the Parent, enforceable against creditors ofthe Seller and their consolidated subsidiaries for the period ended on such date, all in accordance with GAAP, since December 31, 1995, and purchasers fromexcept as disclosed in the Public Disclosure Documents, the Seller. The Seller shall have there has been no remaining property interest change in any Transferred Receivablesuch condition or operations which has had, or could reasonably be expected to have, a Material Adverse Effect. Since December 31, 1995, and except as disclosed in the Public Disclosure Documents, there has been no change in any such condition or operations that has had, or reasonably could be expected to have, a material adverse effect on the operations or financial condition of the Parent.
(f) [Intentionally omitted.]
Except as disclosed in the Public Disclosure Documents, (gi) There there is no pending or, to the knowledge of the Seller, threatened, action, investigation or threatened action or proceeding affecting the Parent, the Seller or any of their subsidiaries before any court, governmental agency or arbitrator that has had, or reasonably could be expected to have, a Material Adverse Effect, (ii) none of the Parent, the Seller nor any of their 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 any subsidiary and have not had (and cannot reasonably be expected to have) a Material Adverse Effect, and (iii) no other condition exists that has caused, or could reasonably be expected to cause, a Material Adverse Effect. Except as disclosed in the Public Disclosure Documents, (i) there is no pending or threatened action or proceeding affecting the Parent or any of its subsidiaries before any court, governmental agency or arbitrator which may have that has had, or could reasonably be expected to have, a Material Adverse Parent Effect, and (ii) neither the Parent 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 Parent or any subsidiary and has not had (and cannot reasonably be expected to have) a Material Parent Effect.
(hg) No proceeds of any Purchase purchase of Percentage Interests will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 of by the Securities Exchange Act of 1934, (ii) Seller to acquire any security in any transaction which is subject to Section 13 or 14 of such the Securities Exchange Act or (iii) for any other purpose that violates applicable lawof 1934, including Regulation G or U of the Federal Reserve Boardas amended.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(jh) 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 any contract related thereto, and the Related SecurityCollateral shall, is at all times, be owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as created by this Agreement, and upon each purchase and reinvestment, the Owner making such purchase or reinvestment, as the result of any action taken by 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 Percentage Interest in each Transferred Receivable then existing or thereafter arising and in the Related Security (other than Security Deposits) and Collections with respect thereto thereto, free and clear of any Adverse Claim (other than any Adverse Claim arising solely except as the result of any action taken by the Purchaser), and no provided hereunder. No effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security Security, the Collections or Collections the Collateral 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 Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with relating to this 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(ki) Each Seller Report (if prepared by the Seller, At all times on or prior to the extent that information contained therein is supplied by Termination Date, the Seller)Coverage Ratio shall equal or exceed 102%.
(j) No Investor Report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Seller or the Servicer to the Purchaser Agent or any Owner in connection with this Agreement is or will 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 no such document contains or will contain any material misstatement of fact or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading. Any Receivable described as an Eligible Receivable in any Investor Report or such other information, exhibit, financial statement, document, book, record or report satisfies the requirements of the definition of "Eligible Receivable." The Seller and the Servicer have management information systems that are adequate to generate reliable statistical information with respect to the Receivables, including such information as is required to be delivered pursuant to the terms of this Agreement.
(lk) The principal place of business and chief executive office of the Seller and the office offices where the Seller keeps its records concerning all of the Transferred Receivables Records are located at the address addresses specified in Schedule IV (or addresses referred at such other locations as to which the notice and other requirements specified in Section 5.01(b6.09 shall have been satisfied). The Seller has not changed its name during places of business in more than one town in Massachusetts.
(l) Obligors have been (or, in the two years prior case of Obligors on Unbilled Receivables, will be) instructed to make all payments in respect of Receivables to the date Seller's post office box in Hartford, Connecticut, and such payments are (i) processed by the Servicer in Wethersfield, Connecticut and (ii) deposited to the Collection Account within one Business Day of this Agreementthe Servicer's receipt thereof. No funds other than Collections are or will be deposited to the Collection Account, provided that the location of such post office box and/or such processing, and the identity of the Collection Account may be changed with the consent of the Agent, upon 30 days' prior written notice to the Agent, if (i) the requirements of Section 6.09 are satisfied, (ii) the Collection Account continues to be a single-purpose account into which Collections (and no other funds) are deposited, (iii) the Collection Account continues to be in the name of the Purchaser, and under the exclusive ownership and control of the Purchaser, and (iv) the bank at which the Collection Account is maintained shall have received, executed and returned a Bank Notice.
(m) All Obligors (other than Obligors in respect of Unbilled Receivables) are listed on the General Trial Balance. The names Seller's methodology for determining the Outstanding Balance of Unbilled Receivables is accurately described in Exhibit B, and addresses such description does not omit any fact necessary to make the statements contained therein not misleading. The Outstanding Balance of all the Lock-Box Banks, together Unbilled Receivables shall be calculated in accordance with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified methodology described 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.B.
(n) None of Except as described in Schedule III, the Seller has no trade names, fictitious names, assumed names or any Originator is known by or uses any registered tradename or doing-business-as name"doing business as" names other than those names with respect to which it has satisfied its obligations under Section 6.09.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 The Seller has assets which are not affiliated with greater than the applicable Originator which by the express terms amount of such license either (i) require the consent of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensingits liabilities, and is able to pay its debts as they become due.
(p) The 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 terms of the SellerReceivables have not been extended or modified, except as permitted under the Credit and Collection Policy.
(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. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than has not been materially changed in accordance with this Agreement.
(t) No event or circumstance has occurred since the date of this Agreement that has any way which might reasonably lead to 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (North Atlantic Energy Corp /Nh)
Representations and Warranties of the Seller. The Seller (both individually and in its capacity as Servicer) 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 duly organizedincorporated, validly existing and in good standing under the laws of DelawareOhio, 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, unless the failure to so qualify would not 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 perform their respective obligations hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement and the other documents Transaction Documents to be delivered by which it hereunderis a party, 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 's corporate powers, (ii) have been duly authorized by all necessary 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 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 Transferred Receivables pursuant to this Agreement). This Agreement and each Each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is named as 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder except for those that have already been obtained or made and the filing of UCC financing statements which are referred to therein.
(d) This Agreement and each Each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ ' rights generally and general by principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales and contributions made pursuant to this Agreement will constitute a valid salesale (or contribution), transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omittedThe consolidated balance sheets of the Seller and its Subsidiaries as of December 31, 2003, and the related statements of income and retained earnings of the Seller and its 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 Subsidiaries as of such date and the results of the operations of the Seller and its Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no material adverse change in the business, operations, property or financial condition of the Seller.]
(g) There is no pending or, to the best knowledge of the Seller, threatened, action, investigation threatened action or proceeding affecting the Seller or any of its subsidiaries Subsidiaries before any court, governmental agency or arbitrator which may (if adversely determined) would have a Material Adverse Effect, except as disclosed in the financial statements referred to in Section 4.01(f).
(h) No proceeds of any Purchase will be used (i) to acquire any equity security of for 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 lawor would be inconsistent with, including Regulation G T, U or U X promulgated by the Board of Governors of the Federal Reserve BoardSystem from time to time.
(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, 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 interest of each Transferred 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 statement or other instrument similar in effect is filed in any recording office listing the Seller as debtor, 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as Agreement and assigned to the priority, as against any other secured creditors of Agent in accordance with the relevant Obligor, of any Underlying Inventory Security InterestPurchase Agreement.
(k) Each Seller Report (if prepared by the Seller, or to the extent that information contained therein is supplied by the Seller)Monthly 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 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 no such Monthly 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 to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not materially 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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(m) The names and addresses of all the Lock-Box Blocked Account Banks, together with the number of the Lock-Boxes and the account numbers of the Lock-Box Blocked Accounts at or maintained by such Lock-Box Blocked Account Banks, are specified in Exhibit B (A, as the same such 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 In the past five (5) years, the Seller or has not used any Originator is known by or uses any registered company name, tradename or doing-business-as namename other than the name in which it has executed this Agreement and the other names listed on Exhibit C. The Seller's organizational identification number is 304416.
(oi) With respect to any programs used in the servicing The fair value of the Receivablesproperty of the Seller is greater than the total amount of liabilities, no sublicensing agreements are necessary in connection with including contingent liabilities, of the designation Seller, (ii) the present fair salable value of a new Collection Agent pursuant to Section 6.01 so the assets of the Seller is not less than the amount that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall will 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 pay all probable liabilities of the licensor 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 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 any sublicensing thereof or (ii) prohibit any such sublicensingwhich the Seller's property would constitute unreasonably small capital.
(p) The sale Seller shall have originated each Receivable in the ordinary course of its business.
(q) Each Transferred Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance on any Monthly Report satisfies the requirements of eligibility contained in the definition of "Eligible Receivable" in the Purchase Agreement as of the date of the information reported in such Monthly Report.
(r) The 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.
(qs) The Seller has (i) timely filed and its ERISA Affiliates are in compliance, in all federal tax returns required to be filedmaterial respects, (ii) timely filed all other material state and local tax returnswith ERISA, 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 no Adverse Claim exists 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 favor 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 Pension Benefit Guaranty Corporation on any of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this AgreementReceivables.
(t) No event or circumstance The Seller believes that the Purchaser has occurred since adequate capitalization and liquidity to meet its financial obligations under the date of this Agreement that has a Material Adverse EffectTransaction Documents without the need for capital contributions other than the capital contributions described in Sections 2.02(a) and 2.02(b).
(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 Each of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration representations and reasonably equivalent value, warranties set forth on Annex A are true and each such sale referred to in the foregoing clause (ii) 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 Codecorrect.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents hereby makes to and warrants as followsfor the benefit of the Purchaser each of the following representations and warranties:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, the State of [______________] and has the power to own its property and to conduct its business as it is duly qualified presently owned and as such business is presently conducted;
(ii) The Seller is neither required to do qualify nor to register as a foreign corporation in any state in order to conduct its business, and is in good standing, in every jurisdiction where not required under federal or state law to obtain any licenses or approvals with respect to such business except such as have been obtained prior to the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or Closing Date;
(iii) The Seller has the ability power and authority to make, execute, deliver and perform its obligations under this Agreement and all of the Seller or transactions contemplated under this Agreement, and has taken all necessary corporate action to authorize the Collection Agent to perform their respective obligations hereunder.execution, delivery and performance of this Agreement;
(biv) 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 connection with the execution, delivery, performance, validity or enforceability of this Agreement, except such as have been obtained or filed, as the case may be, prior to the Closing Date;
(a) 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 Transferred Receivables pursuant , or constitute a material breach of any mortgage, indenture, contract or other agreement to this Agreement). This Agreement and each of the other Transaction Documents to be delivered by which 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to by which the Seller may be delivered by it thereunder except for the filing of financing statements which are referred to therein.bound;
(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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no proceedings or investigations pending or, to the best knowledge of the Seller, threatened, action, investigation or proceeding affecting the Seller or any of its subsidiaries before any court, regulatory body, administrative agency, arbitrator or other tribunal or governmental agency or arbitrator which may have a Material Adverse Effect.
(h) No proceeds of any Purchase will be used instrumentality (i) to acquire any equity security asserting the invalidity of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934this Agreement, (ii) seeking to acquire prevent the consummation of any security in any transaction which is subject to Section 13 or 14 of such Act or the transactions contemplated by this Agreement, (iii) for seeking any other purpose that violates applicable lawdetermination or ruling that, including Regulation G or U in the reasonable judgment of the Federal Reserve Board.
(i) No transaction Seller, would materially and adversely affect the transactions contemplated hereby requires compliance with any bulk sales act by this Agreement 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, is owned (immediately prior to its sale hereunder) performance 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 Transferred 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 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 the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with its obligations under this Agreement, (iv) seeking any determination or in connection with ruling that would materially and adversely affect the validity or enforceability of this Agreement, (v) seeking to affect adversely the Federal income tax attributes of the Trust, or (vi) seeking to impose 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 warranty by tax upon the Seller as to the priority, as against any other secured creditors a result of the relevant Obligor, sale of any Underlying Inventory Security Interest.the Mortgage Loans pursuant to this Agreement; and
(kvi) Each The Seller Report (if prepared is not insolvent and will not be insolvent following the consummation on the Closing Date of the transactions contemplated by this Agreement and has not entered into such transactions, including 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 transfer by the Seller to the Purchaser of the property specified in connection Section 1, in contemplation of insolvency or with a view to hindering its creditors. The representations and warranties set forth in this Agreement is or will be accurate in all material respects as Section 3 shall survive the sale of its date or (except as otherwise disclosed the Mortgage Loans to the Purchaser at such time) as and the transfer of the date so furnished.
(l) The principal place of business Mortgage Loans by the Purchaser to the Trust and chief executive office the delivery 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). The Seller has not changed its name during the two years prior Mortgage Files to the date of this Agreement.
(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))Trustee. 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 Upon discovery by the Seller or the Purchaser of a breach of any Originator is known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, howeverforegoing representations and warranties, the Collection Agent, if other than IR Company or an affiliate thereof, party discovering such breach shall be required to be bound by a confidentiality agreement reasonably acceptable give prompt written notice thereof 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 sublicensingother party.
(p) The 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Loan Purchase Agreement (Directors Asset Conduit Corp)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, together event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Related Security, is owned applicable Transfer Agreement and (immediately prior to its sale hereunderii) by a representation or warranty of 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 Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinunder this Agreement, the Related Security sole right or Collections with respect thereto is on file in remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any recording office except such as may be filed in favor applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with the Initial Purchase Agreementthis Section 1.04(b) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(miv) The names Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and addresses of all the Lock-Box Banks, together with Mortgaged Property has not been released from the account numbers lien of the Lock-Box Accounts at Mortgage, in whole or in part, nor has any instrument been executed that would effect any such Lock-Box Banksrelease, are specified in Exhibit B cancellation, subordination or rescission;
(as v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the same may be updated from time to time pursuant to Section 5.01(g)related Mortgaged Property (including all improvements on the Mortgaged Property). The Lock-Box Accounts 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 only accounts into which Collections aggregate, materially interfere with the benefits of Receivables are deposited the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or remittedequivalent 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 expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinderno prior holder of the related Mortgage, delay including the Seller, has done, by act or defraud creditors omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller.
(q) The Seller has (i) timely filed all federal tax returns required to be filed’s knowledge, (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 no foreclosure action is being contested in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).premises were intended;
(rix) The Seller 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 notsupervised 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 not controlled by, an a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company 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 19401994 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 exempt 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. 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 provisions 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 related borrower is in default under such Mortgage Loan and liquidation of such actMortgage Loan is completed within six months after the Closing 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.
(sc) 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.Notwithst
Appears in 1 contract
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statementevent 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 LBH under the Mortgage Loan Sale Agreement, an Eligible Receivablethe 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. Each Transferred ReceivableThe 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, together 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 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, LBH shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the Related Securityapplicable purchase price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, is owned (immediately prior with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to its sale hereunder) by 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 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 Transferred 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)encumbrance, and no effective financing statement equity, participation interest, lien, pledge, charge, claim or other instrument similar in effect covering any Transferred Receivable, any security interest therein, the Related Security or Collections with respect thereto is placed on file in any recording office except such as may be filed in favor of the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared Mortgage Loan by the Seller, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(l) The principal place of business sell 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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sale of Transferred 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.
(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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as followsto Purchaser that:
(a) The Seller is a corporation duly organizedindividual residing at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, and is the Chief Executive Officer of the Company, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature State of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunderNevada.
(b) The Seller has authorized the execution, delivery and performance by the Seller of this Agreement and the other documents to be delivered by it hereunderPurchase Agreement, 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 corporate 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 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 Transferred Receivables pursuant to this Agreement). This Agreement and each of the transactions contemplated hereby. No other Transaction Documents action is necessary to be delivered by the 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 pursuant hereto has been duly executed and delivered by the Sellerin accordance with its terms.
(c) No consent, approval, authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller order of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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 body or arbitrator having jurisdiction over Seller is required for the execution, delivery or performance by Seller of its obligations hereunder, including without limitation the sale of the Shares.
(d) 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 decree, judgment, order, law, treaty, rule, regulation or determination 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 may have Seller is a Material Adverse Effectparty or to which any of Seller’s properties is subject.
(e) Seller has good and marketable title to the 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 Securities Act and any state securities laws (collectively, “Encumbrances”), and will be transferred to Purchaser free of any Encumbrances.
(f) The sale of the Shares by Seller is not part of a plan or scheme to evade the registration requirements of the Securities Act. Neither Seller nor any Person acting on behalf of Seller has offered or sold any of the Shares by any means that would be deemed a “general solicitation” under the provisions of Regulation D of the Securities Act.
(g) Except for the 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 Purchaser’s acquisition of the Shares, including any representations or warranties as to Seller, its business, prospects, financial condition, operations or otherwise.
(h) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which Seller is registered pursuant to Section 12 an executive officer of the Securities Exchange Act of 1934, (iiCompany and the majority shareholder and therefore all the Shares sold hereby are deemed restricted securities as per Rule 144(a)(3) 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 Boardidentifies what sales produce restricted securities.
(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 agrees to correct the accounting reporting error and reflect the ownership of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, as real estate assets of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, together Company as described in further filings with the Related Security, is owned Securities and Exchange Commissions (immediately prior to its sale hereunderthe “SEC”) 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 Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants to Buyer as follows:
(a) The Seller is a corporation duly organizedhas the necessary legal capacity, validly existing power and in good standing under authority to execute, deliver and carry out the laws terms and provisions of Delawarethis Agreement and to consummate the transactions contemplated hereby, and is duly qualified has taken all necessary action to do business, and is in good standing, in every jurisdiction where authorize the nature of its business requires it to be so qualified, unless the failure to so qualify would not 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 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 sale of Receivables hereunder and the Seller’s use of the proceeds of Purchases, Agreement;
(ib) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is constitutes a party or any other document to be delivered by it thereunder 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 Seller, enforceable against the Seller in accordance with its terms terms;
(except as enforceability may be limited by applicable bankruptcyc) As of the date hereof, insolvencythe Sale ADSs are fully paid and non-assessable;
(d) As of the date hereof, reorganization or similar laws affecting Seller is the enforcement owner, beneficially and of creditors’ rights generally record, of the Sale ADSs, free and general principles clear of equityany Liens, whether considered in an action and will transfer at law or equity).Closing to Buyer good and valid title to the Sale ADSs, free and clear of any Liens;
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment As of the Transferred Receivables to date hereof, other than the PurchaserSale ADSs, enforceable against creditors ofSeller is not the owner, and purchasers frombeneficially or of record, the Seller. The Seller shall have no remaining property interest in of any Transferred Receivable.ADSs or Shares;
(f) [Intentionally omitted.]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, 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 to which Seller is a party or by which Seller or any of the 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 is exists no pending or, restriction upon the sale and delivery to the knowledge Buyer of the Sale ADSs by Seller, threatened, action, investigation nor is Seller required to obtain the approval of any person or proceeding affecting the Seller entity or any of its subsidiaries before any court, governmental authority or regulatory agency or arbitrator which may have a Material Adverse Effect.to effect the sale of such ADSs in accordance with the terms hereof;
(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 There are no claims for brokerage commissions or 14 of such Act finder’s fees 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 agent’s commissions 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 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.transactions contemplated hereby; and
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 paid all federal tax returns Taxes required to be filedpaid by it with respect to the acquisition, ownership or disposition of the Sale ADSs, and (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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.relevant
Appears in 1 contract
Sources: American Depositary Share Purchase Agreement (Metlife Inc)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller (i) is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite power and authority under its Organization Documents and applicable law to own its property and assets and to carry on its business as now conducted and proposed to be conducted after the Closing Date and (iii) is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it such qualification or authorization is required, except, with respect to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, clauses (ii) the collectibility of the Transferred Receivables, or and (iii) ), to the ability of the Seller or the Collection Agent extent that any failure could not reasonably be expected to perform their respective obligations hereunderhave a Material Adverse Effect.
(b) The Seller has no Subsidiaries. All of the outstanding membership interests of the Seller are owned, directly or indirectly, by FNIS.
(c) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents to which it is a party, 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 PurchasesPurchases and reinvestments, (i) are within the Seller’s corporate powers, (ii) have been duly authorized and delivered by all necessary corporate actionaction on its part, (iii) do not contravene (1i) violate (x) any provision of the Seller’s organizational documents, (2) Organization Documents or any other agreement governing its organization and/or scope of power and authority or any applicable law, rule rule, regulation or regulation applicable to the Seller, (3) any contractual restriction binding on or affecting the Seller or its property or (4) any order, writ, judgment, awardinjunction, injunction decree, determination or decree award of any Governmental Authority binding on upon it, (ii) except to the extent the same could not reasonably be expected to have a Material Adverse Effect, result in a breach of or affecting constitute (alone or with notice or lapse of time or both) a default under any indenture or any agreement or other instrument to which it is a party, or by which it or any of its properties or assets are bound, or (iii) except for the Seller or its propertyLiens created by the Transaction Documents, and (iv) do not result in or require the creation or imposition of any lien, security interest or other charge or encumbrance Lien upon or with respect to any of its properties property or assets.
(except for the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement). d) This Agreement is, and each of the other Transaction Documents to be delivered by which the Seller pursuant hereto has been duly executed is or will be a party when delivered will be, the legal, valid and delivered binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting the Sellerrights of creditors generally and by general principles of equity, including implied obligations of good faith and fair dealing.
(ce) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority is or regulatory body is will be required for the due execution, delivery and performance by the Seller of the any Transaction Documents Document to which it is a party or any other document to be delivered by it thereunder transaction contemplated hereby or thereby, except for the filing filings of the 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred ReceivableArticle III.
(f) [Intentionally omittedSince the date of the Seller’s formation, there has not occurred any development or event affecting, or any change in the assets, results of operations or financial condition of the Seller which has resulted or could reasonably be expected to result in a Material Adverse Effect.]
(g) There is no action, suit, investigation, litigation or proceeding at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of any Specified Responsible Officer of the Seller, threatened, action, investigation or proceeding affecting threatened against the Seller or any its assets or rights as to which there is a reasonable likelihood of its subsidiaries before any courtan adverse decision and which, governmental agency or arbitrator which may if adversely determined, could, individually or, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of any Purchase will be used (i) Immediately prior to acquire any equity security of a class which is registered pursuant to Section 12 the time of the Securities Exchange Act initial creation of 1934, (ii) to acquire any security an interest hereunder in any transaction which Pool Receivable, the Seller is subject to Section 13 or 14 the legal and beneficial owner of such Act or (iii) for any other purpose that violates applicable lawPool Receivable and Related Security and Collections with respect thereto, 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, is owned (immediately prior to its sale hereunder) by the Seller each case free and clear of any Adverse Claim Lien (other than any Adverse Claim arising solely as Permitted Liens).
(ii) Upon each Purchase or reinvestment, the result of any action taken by the Purchaser). When Seller shall transfer to the Purchaser makes making such Purchase or reinvestment (and such Purchaser shall acquire) a Purchase it shall acquire valid interest to the extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and perfected first priority ownership of each Transferred Receivable and in the Related Security and Collections with respect thereto thereto, free and clear of any Adverse Claim Lien (other than any Adverse Claim arising solely as the result of any action taken by the PurchaserPermitted Liens), and no effective financing statement which ownership interest or other instrument similar in effect covering any Transferred Receivable, any security interest therein, shall be a perfected first priority ownership interest or security interest upon the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor filing of the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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 financing statements referred to in Section 5.01(b3.1(b)(ii) and (vi). The Seller has not changed its name during the two years prior ; provided, however, that, notwithstanding such transfer and notwithstanding anything to the date contrary in any Transaction Document, the Seller shall at all times have the right to retain copies of this Agreementall Contracts, Records and other items constituting the Related Security.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 Receivabletransfer to it of any Pool Receivables, the Seller has either (i) shall have received each Transferred Receivable acquired by it as a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable Pool Receivables from the applicable an Originator in exchange for payment (made by the Seller to the applicable an Originator in accordance with the provisions of the Initial Purchase Receivables Sale Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration and approximates fair market value for such Pool Receivables and in a sale the terms and conditions of which (including, without limitation, the purchase price thereof) reasonably equivalent value, and each such sale referred to in the foregoing clause approximate an arm’s-length transaction between unaffiliated parties or (ii) shall not have acquired such Pool Receivables from FNIS as a capital contribution in accordance with the provisions of the Receivables Sale Agreement. No such sale, and no such contribution, has been made for or on account of an antecedent debt owed by any Originator to the Seller and no such sale or contribution is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code.
(vi) Each The jurisdiction of incorporation, organizational identification number (if any), and the address(es) of the principal place of business and chief executive office of the Seller and the office where the Seller keeps its Records concerning the Receivable Assets, are as set forth in Schedule III hereto (or, by notice to the Agent in accordance with Section 5.1(e), at such other locations in jurisdictions, within the United States, where all requested actions under Section 6.5(a) have been taken and completed).
(j) Schedule I hereto (as supplemented by any Permitted Account Update) correctly sets forth (1) with respect to each such Lock Box Bank, the name, address and telephone number thereof, (2) with respect to each Lock-Box Account, the name in which such account is held and the complete account number therefor, (3) with respect to each Lock Box, the lock box number and address thereof and (4) with respect to each other Restricted Account, the name in which such account is held, the complete account number therefor and the name, address and telephone number of the depositary bank with which such Restricted Account is maintained. Except pursuant to the Control Agreements, neither the Seller, the Servicer nor any Receivables Administrator has granted any Person dominion or control over any Lock Box or Restricted Account, or the right to take dominion or control over any Lock Box or Restricted Account at a future time or upon the occurrence of a future event.
(k) Since the date of its formation, the Seller has not engaged in any activity other than as contemplated or permitted by the Transaction Documents or entered into any commitment or incurred any Indebtedness other than pursuant to, or as permitted under, the Transaction Documents.
(l) The Seller has not maintained, contributed to or incurred or assumed any obligation with respect to any Plan, Multiemployer Plan or Welfare Plan, except such obligation or contingent obligation that arises as a matter of law solely as a result of an ERISA Affiliate’s sponsorship of a Plan, Multiemployer Plan or Welfare Plan.
(m) The Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder. The Seller has not extended or modified the terms of any Pool Receivable or the Contract under which any such Pool Receivable arose, except in accordance with the Credit and Collection Policy.
(n) The Seller has filed all Federal and material state and other tax returns and reports required to be filed, and has paid all Federal and material state and other taxes, assessments, fees and other governmental charges levied or imposed upon it or its properties, income or assets otherwise due and payable, except those (i) which are not overdue by more than 30 days, (ii) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (iii) with respect to which the failure to make such filings or payment could not reasonably be expected to have a Material Adverse Effect.
(o) The Seller is not an “eligible assetinvestment company” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
(p) Both before and after giving effect to (i) each Purchase to be made on the Closing Date or such other date as Purchases requested hereunder are made, (ii) the disbursement of the proceeds of any Capital Investment, (iii) the consummation of each other transaction contemplated by the other Transaction Documents and (iv) the payment and accrual of all transaction costs in connection with the foregoing, the Seller is Solvent.
(q) No proceeds of any purchase hereunder will be used for a purpose that violates, or would be inconsistent with, Regulation U or X.
(r) This Agreement, together with the filing of the financing statements contemplated hereby, is effective to, and shall, upon each Purchase hereunder, transfer to the Agent for the benefit of the Purchasers (and the Agent for the benefit of the Purchasers shall acquire from the Seller) a valid and perfected first priority undivided percentage ownership interest or security interest in each Receivable existing or hereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Liens, except Permitted Liens.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fidelity National Information Services, Inc.)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business, business and is in good standing, standing as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified, unless except where the failure to be so qualify qualified would not 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 perform their respective obligations hereunderMaterial 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 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 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 the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the its due execution, delivery and performance by the Seller of the Agreement or any other Transaction Documents Document to which it is a party or any party, other document to be delivered by it thereunder except for than the filing of financing statements which are Uniform Commercial Code filings referred to thereinin 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 each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller’s best knowledge, threatened, action, investigation threatened action or proceeding affecting the Seller or any of its subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator which may have a Material Adverse Effectarbitrator.
(hf) No proceeds of any Purchase purchase or reinvestment will be used (i) to acquire any equity security of a class which that 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.
(ig) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized in any The Seller Report or other written statement made by or on behalf is the legal and beneficial owner 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 Pool Receivables and Related Security, is owned (immediately prior to its sale hereunder) by the Seller 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 the each Purchaser). When the Purchaser makes a Purchase it ) shall acquire a valid and enforceable perfected first priority undivided percentage ownership or security interest, to the extent of the Purchased Interest, in each Transferred Pool Receivable then existing or thereafter arising and in the Related Security Security, Collections and Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim Claim. The Agreement creates a security interest in favor of the Administrator (other than 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 Adverse Claim arising solely as the result of any action taken by the Purchaser), and no Claims. No effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security or 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 Seller in accordance with pursuant to the Initial Purchase Agreement, in favor Sale Agreement and the Administrator (for the benefit of Purchaser in accordance with this 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 the Purchaser. Nothing Person in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestsuch Pool Asset.
(kh) Each Seller Report Information Package (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished 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, and does not and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
(li) 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). The Seller has not changed filed all tax returns and reports required by law to have been filed by it and 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 name during the two years prior to the date of this Agreementbooks.
(mj) 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 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 same may be updated from time to time pursuant to Section 5.01(g)). The Administrator in accordance with the Agreement) and all Lock-Box Accounts are the only accounts into which Collections of Receivables are deposited or remitted, subject to Lock-Box Agreements (except as expressly permitted pursuant otherwise agreed to in writing by the terms 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 Section 5.01(hany 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) hereofThe Seller is not 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) None Each Pool Receivable included as an Eligible Receivable in the calculation of the Seller or any Originator Net Receivables Pool Balance is known by or uses any registered tradename or doing-business-as namean Eligible Receivable.
(o) With 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 to any programs used of, or reinvestment in respect of, the servicing Purchased Interest or from the application of the Receivables, no sublicensing agreements are necessary in connection with the designation of proceeds therefrom that constitutes a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company Termination Event 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 sublicensingUnmatured Termination Event.
(p) The Seller has accounted for each sale of Transferred 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 Sellerconsistent with generally accepted accounting principles.
(q) The Seller has (i) timely filed complied in all federal tax returns required material respects with the Credit and Collection Policy of each Originator with regard to be filedthe Receivables originated by such Originator, (ii) timely filed all other material state 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 local tax returns, and (iii) paid or made adequate provision for the payment aggregate Outstanding Balance 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)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 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(k)(iv) of Exhibit IV to the Agreement.
(t) The Seller (i) is not, and is not controlled by, an “investment company” within registered or required to be registered under the meaning 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, the Seller relies on, and is entitled to rely on, the exemption from the definition of “investment company” set forth in Section 3(c)(5) 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. 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 EffectAct.
(u) With respect to each Transferred Receivable, Receivable transferred to the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution under the Sale Agreement, Seller has given reasonably equivalent value to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration therefor and reasonably equivalent value, and each such sale referred to in the foregoing clause (ii) shall transfer was not have been made for or on account of an antecedent debt owed debt. No transfer by any Originator to of any Receivable under the Seller and no such sale Sale Agreement is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code.
(v) 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).
(w) Since its most recent fiscal year end, there has been no change in the business, operations, financial condition, properties or 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.
(x) Neither Seller nor any of its directors, officers, employees, agent or Affiliates (i) is an “eligible assetenemy” as defined in Rule 3a-7 promulgated under or an “ally of the Investment Company enemy” within the meaning of Section 2 of the Trading with the Enemy Act of 1940the United States (50 U.S.C. App. §§ 1 et seq.), as amended(ii) is in violation of (A) any of the laws, regulations and executive orders administered by the 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 its 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.
(y) The Seller has not issued any LCR Securities, and the Seller 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. The Seller represents hereby makes the following representations and warrants warranties to the Buyer, which may be relied on by any subsequent purchasers of the Issuer’s capital stock and their counsel if such purchases take place as followspart of the next direct or indirect merger or similar transaction with an operating business that results in a change of control of the Issuer:
(a) The Seller is initially acquired the Shares in a corporation duly organized, validly existing and in good standing under private stock sale exempt from the laws of Delaware, 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, unless the failure to so qualify would not have a material adverse effect on (i) the interests registration requirements of the Purchaser hereunderSecurities Act of 1933, (iias amended, by virtue of Section 4(2) the collectibility of the Transferred ReceivablesCommission thereunder, or (iii) the ability of pursuant to a Stock Purchase Agreement by and between the Seller or and the Collection Agent to perform their respective obligations hereunderIssuer dated as of ________________.
(b) The executionSeller owns the Shares free and clear of all any and all liens, delivery claims, encumbrances, preemptive rights, right of first refusal and adverse interests of any kind.
(c) Seller has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and otherwise to carry out Seller’s obligations hereunder. No consent, approval or agreement of any individual or entity is required to be obtained by the Seller in connection with the execution and performance by the Seller of 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 of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 for the due execution, delivery execution and performance by the Seller of the Transaction Documents to which it is a party any agreements, instruments or any other document to be delivered by it thereunder 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 obligations entered into in accordance connection with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)this Agreement.
(e) Sales made pursuant There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to this Agreement will constitute a valid salethe Seller’s knowledge, transferthreatened against the Seller or any of Seller’s properties. There is no judgment, and assignment decree or order against the Seller that could prevent, enjoin, alter or delay any of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivabletransactions contemplated by this Agreement.
(f) [Intentionally omitted.]
There are no material claims, actions, suits, proceedings, inquiries, labor disputes or investigations (gwhether or not purportedly on behalf of the Issuer) There is no pending or, to the knowledge of the Seller’s knowledge, threatened, action, investigation or proceeding affecting threatened against the Seller or any of its subsidiaries assets, at law or in equity or by or 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with this Agreement, entity or in connection with any Adverse Claim arising solely as the result of any action taken by the Purchaserarbitration or mediation. Nothing in this Section 4.01(j) shall constitute a representation No bankruptcy, receivership or warranty by the Seller as debtor relief proceedings are pending or, to the prioritySeller’s knowledge, as threatened against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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.
(qg) The Seller has (i) timely filed all federal tax returns required to be filedcomplied with, (ii) timely filed all other material state and local tax returnsis not in violation of, and (iii) paid or made adequate provision for the payment has not received any notices 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 violation with respect to, any federal, state, local or foreign Law, judgment, decree, injunction or order, applicable to which it, the obligation conduct of its business, or the ownership or operation of its business. References in this Agreement to pay such amount is adequately reserved against in accordance with and “Laws” shall refer to the extent required by generally accepted U.S. accounting principlesany laws, rules or regulations of any federal, state or local government or any governmental or quasi-governmental agency, bureau, commission, instrumentality or judicial body (including, without limitation, any federal or state securities law, regulation, rule or administrative order).
(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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Securities Purchase Agreement (Willowtree Advisor, Inc.)
Representations and Warranties of the Seller. 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, organized and validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, the United States of America and is in good standing, compliance with the laws of each state in every jurisdiction where which any Mortgaged Property is located to the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, each Mortgage Loan;
(ii) The Seller has the collectibility power and authority to make, execute, deliver and perform its obligations under this Agreement and each Subsequent Transfer Agreement to which it is a party and all of the Transferred Receivablestransactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(iii) 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;
(iiiiv) 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 Collection Agent to perform their respective obligations hereunder.
(b) The executionvalidity or enforceability of, 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 corporate 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Basic Documents to which it is a party or any other document to be delivered (C) the transactions contemplated by it thereunder except for the filing of financing statements which are referred to therein.this Agreement;
(dvi) This Agreement and each of the other Transaction Documents Subsequent Transfer Agreement to be delivered by the Seller pursuant hereto 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 (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar reorganization, moratorium and other laws affecting 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 equity, whether such enforcement is considered in an action a proceeding in equity or at law or equitylaw)., 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) Sales made pursuant 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 sale, transfer, transfer and assignment of the Transferred Receivables to the PurchaserPurchaser of all right, enforceable against creditors of, title and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as and to the prioritySubsequent Mortgage Loans, as against any other secured creditors including the Cut-Off Date Principal Balances of the relevant ObligorSubsequent Mortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by the Seller, all monies due or to the extent that information contained therein is supplied by the Seller)become due with respect thereto, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time and all proceeds of such Cut-Off Date Principal Balances and 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.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 hinderthe Trustee, delay the Paying Agent, the Enhancer 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 Securityholders 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.thereto; and
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Mortgage Loan Trust, LLC)
Representations and Warranties of the Seller. 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, organized and validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, the United States of America and is in good standing, compliance with the laws of each state in every jurisdiction where which any Mortgaged Property is located to the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, each Mortgage Loan;
(ii) The Seller has the collectibility power and authority to make, execute, deliver and perform its obligations under this Agreement and each Subsequent Transfer Agreement to which it is a party and all of the Transferred Receivablestransactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(iii) 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;
(iiiiv) 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 Collection Agent to perform their respective obligations hereunder.
(b) The executionvalidity or enforceability of, 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 corporate 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Basic Documents to which it is a party or any other document to be delivered (C) the transactions contemplated by it thereunder except for the filing of financing statements which are referred to therein.this Agreement;
(dvi) This Agreement and each of the other Transaction Documents Subsequent Transfer Agreement to be delivered by the Seller pursuant hereto 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 (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization 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 the enforcement of creditors’ ' rights generally and by general principles of equity, equity (whether considered in an a proceeding or action in equity or at law or equitylaw).;
(exi) Sales made pursuant No Mortgage Loan is subject to this Agreement the Home Ownership and Equity Protection Act of 1994. Furthermore, no Mortgage Loan either currently has, or in the future will constitute a valid salehave, transfer, and assignment single premium life provisions as part of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.Loan Agreement;
(fxii) [Intentionally omitted.]Each Initial Mortgage Loan has an associated CLTV of no higher than 100%;
(gxiii) There is no proceeding pending or, to or threatened for the knowledge total or partial condemnation of the SellerMortgaged Property, threatened, action, investigation or nor is such a proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effect.currently occurring;
(hxiv) No proceeds The related Loan Agreement is not and has not been secured by any collateral, pledged account or other security except the lien of any Purchase the 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 documents and instruments specified to be used included therein;
(xvi) With respect to each Mortgage Loan that is not a first mortgage loan, either (i) to acquire any equity security of a class which no consent for the Mortgage Loan is registered pursuant to Section 12 required by the holder or holders of the Securities Exchange Act of 1934related prior lien, (ii) to acquire any security such consent has been obtained and is contained in any transaction which is subject to Section 13 or 14 of such Act the related Mortgage File or (iii) no consent for any other purpose that violates applicable the Mortgage Loan was required by relevant law, including Regulation G or U ;
(xvii) The Mortgaged Property is located in the state identified in the Mortgage Loan Schedule and consists of a single parcel of real property with a residential dwelling erected thereon;
(xviii) The related Mortgage contains customary and enforceable (subject to clause (x)) provisions which render the rights and remedies of the Federal Reserve Board.
holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including, (i) No transaction contemplated hereby requires compliance in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. There is no 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 of the Seller's knowledge, there is no default, breach, violation or 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 bulk sales act 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 law.liens or claims which have been filed for work, labor or material affecting the related Mortgaged Property which are, or may be liens prior or equal to the lien of the related Mortgage, except liens which are fully insured against by a title insurance policy referred to in clause (xxiv) below;
(jxxiii) As of the Cut-Off Date or 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;
(xxiv) A title search or other assurance of title customary in the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each Receivable characterized in any Seller Report or other written statement made by or on behalf original Mortgage was recorded, and all subsequent assignments of the Seller 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 to perfect the lien thereof (whether as Collection Agent or otherwise) as an Eligible Receivable is, as are in the process of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller being recorded in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.local law);
(kxxvi) 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during transferred the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sale of Transferred Receivables by 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 Seller.Securityholders was utilized in selecting the Mortgage Loans;
(qxxviii) 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;
(ixxx) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returnsNo instrument of release or waiver has been executed in connection with the Mortgage Loans, and no Mortgagor has been released, in whole or in part, from its obligations in connection therewith;
(iiixxxi) paid 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 made adequate provision for 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 of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested by application in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).Rapid Amortization Period commences;
(rxxxiv) The Seller is not, and is not controlled by, an “investment company” within the meaning None of the Investment Company Act of 1940Loan Agreements that constitute or evidence the Mortgage Loans has any marks or notations indicating that they have been pledged, assigned or is exempt from all provisions of such act.otherwise conveyed to any Person other than the Purchaser;
(sxxxv) The receivables credit and collection policies and practices of the Originators 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 A are in effect as 6) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act";
(xxxvi) Reserved;
(xxxvii) As of the date Cut-Off Date, the minimum CLTV of this Agreement. Since a Mortgage Loan is ___%, the date highest CLTV of this Agreementa Mortgage Loan is ___% and the weighted average CLTV for the Mortgage Loans is approximately ___%;
(xxxviii) As of the Cut-Off Date, there 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 material changes 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 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 secured by Mortgaged Properties located in the Credit states of _______, _______, _______, _______ and Collection Policy other than in accordance with this Agreement._______, respectively;
(tA) No event Each Mortgaged Property consists of a single parcel of real property with a single family 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase pricemulti-family residence erected thereon, 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 (ii) shall not have been made for individual condominium unit 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.agricultu
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Asset Funding Trust, LLC)
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants to the Trustee, the Oversight Agent, the Certificate Insurer and to the Owners as followsof the Startup Day that:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, the State of California and is in good standing, standing as a foreign corporation in every 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, unless conducted and to enter into and discharge its obligations under this Agreement and the failure other Operative Documents to so qualify would not have which it is 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 perform their respective obligations hereunderparty.
(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 corporate powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary corporate action, (iii) do action on the part of the Seller and will not contravene (1) violate the Seller’s organizational documents's Articles 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 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 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 Sellerproperties.
(c) No authorization or approval or This Agreement and the other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Operative Documents to which it the Seller is a party or any other document to be delivered party, assuming due authorization, execution and delivery by it thereunder 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 parties hereto and thereto, each constitutes the legala valid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its the terms (hereof and thereof, except as enforceability the enforcement hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and by general principles of equity, equity (whether considered in an a proceeding or action in equity or at law law).
(d) The Seller is not in default with respect to any order or equity)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) Sales made pursuant 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 will constitute or any other Operative Document to which it is a valid sale, transfer, party or that would materially and assignment adversely affect the condition (financial or otherwise) or operations of the Transferred Receivables to Seller or its properties or might have consequences that would materially and adversely affect the Purchaser, enforceable against creditors of, and purchasers from, validity or enforceability of Mortgage Loans or the Seller. The Seller shall have no remaining property interest in any Transferred Receivable's performance hereunder or under the other Operative Documents to which it is a party.
(f) [Intentionally omittedNo certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading.]
(g) There The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is no pending orresponsible in accordance with the Operative Documents or which are attributed to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to the Seller or 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 Seller'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 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 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 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 and the other Operative Documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other Operative Documents to which it is a party.
(i) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(j) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Mortgage Loans.
(k) The Seller did not sell any interest in any Mortgage Loan with any intent to hinder, delay or defraud any of its creditors.
(l) The Seller is solvent and the Seller will not be rendered insolvent as a result of the sale of the Mortgage Loans.
(m) On the Startup Day, the Trustee will have good title on behalf of the Trust to each Initial Mortgage Loan and such other items comprising the corpus of the Trust Estate free and clear of any lien.
(n) There has been no material adverse change in any information submitted by the Seller in writing to the Certificate Insurer.
(o) To the best knowledge of the Seller, threatened, action, investigation or proceeding affecting the Seller or no document (including any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effect.
(hinformation provided in electronic form) 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 submitted 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against Certificate Insurer contains any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by the Seller, untrue 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation misleading statement of a new Collection Agent pursuant material fact or fails to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be state a material fact required to be bound by a confidentiality agreement reasonably acceptable stated therein or necessary in order to make the applicable Originator), except for those programs licensed from Persons which are statements therein 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 sublicensingmisleading.
(p) The sale of Transferred 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, no material adverse change affecting any security for the Class A Certificates has occurred prior to delivery of and payment for the Class A Certificates.
(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 is not in default under any agreement involving financial obligations or made adequate provision for on any outstanding obligation which would materially adversely impact the payment financial condition or operations of all taxes, assessments and other governmental charges (other than any tax, assessment the Seller or governmental charge which is being contested legal documents associated with the transaction contemplated 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)this Agreement.
(r) The Seller is not, and is shall not controlled by, an “investment company” within the meaning generally solicit refinancings of the Investment Company Act of 1940Mortgage Loans; provided however, that this covenant shall not prevent or is exempt restrict the Seller from all provisions of such act.
soliciting or otherwise agreeing to refinancings on the following basis: (s1) The receivables credit and collection policies and practices general solicitations, by mail, advertisement or otherwise of the Originators attached hereto general public or persons on a targeted list, so long as Exhibit A are in effect as of the date of this Agreement. Since list was not generated from the date of this AgreementMortgage Loan Schedule, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreement.
(t2) 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, 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) shall have received each Transferred Receivable acquired by it as a contribution Mortgagors who indicate to the capital of the Seller by the applicable Originator or their intent to refinance their Mortgage Loans, (ii) shall have purchased such Transferred Receivable from with respect to Mortgage Loans in Group II, Mortgagors with Mortgage Loans for which the applicable Originator in exchange for payment (made next interest rate adjustment is determined by the Seller to be higher than the applicable Originator in accordance current market rate for a fixed rate mortgage loan with the provisions same risk qualifications or (iii) in connection with the general solicitation described in (1) above, and (4) as otherwise disclosed in the Prospectus Supplement or the Prospectus. It is understood and agreed that the representations and warranties set forth in this Section 3.1 shall survive delivery of the Initial 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 (ii) shall not have been made for or on account of an antecedent debt owed by any Originator Mortgage Loans to the Seller and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy CodeTrustee.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-4)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organizedformed, validly existing and in good standing under the laws of DelawareIndiana, 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, unless the failure to so qualify would not 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 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 sale and contribution of Receivables hereunder and the Seller’s use of the proceeds of Purchases, (i) are within the Seller’s corporate limited liability company powers, (ii) have been duly authorized by all necessary corporate limited liability 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 Transferred 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 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, in favor of the Seller in accordance with the Initial 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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)) . The Seller has not changed its name during the two years prior to the date of this Agreement.
(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))) . 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 The Seller or any Originator is not known by or uses and does not use any registered 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereofCompany, shall be required to be bound by a confidentiality agreement reasonably acceptable to the applicable OriginatorSeller and Schlage), except for those programs licensed by the Seller from Persons which are not affiliated with the applicable Originator Seller 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 sale 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.
(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 Seller attached hereto as Exhibit A are in effect as of the date of this Agreement. 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 ReceivableReceivable acquired by the Seller from Schlage, the Seller shall either (i) shall have received each acquired such Transferred Receivable acquired by it as a contribution to the capital of the Seller by the applicable Originator Schlage or (ii) shall have purchased such Transferred Receivable from the applicable Originator Schlage in exchange for payment (made by the Seller to the applicable Originator Schlage in accordance with the provisions of the Initial 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 transfer referred to in the foregoing clause (ii) shall not have been made for or on account of an antecedent debt owed by any Originator Schlage to the Seller and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Secondary Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, together event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Related Security, is owned applicable Transfer Agreement and (immediately prior to its sale hereunderii) by a representation or warranty of 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 Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinunder this Agreement, the Related Security sole right or Collections with respect thereto is on file in remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any recording office except such as may be filed in favor applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with the Initial Purchase Agreementthis Section 1.04(b) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) a. The Seller is a corporation duly organizedhas good and marketable title to the Shares subject to no pledge, validly existing and in good standing under the laws of Delawarelien, and is duly qualified to do businessencumbrance, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivablessecurity interest, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereundercharge.
(b) The execution, delivery and performance by the Seller of this b. 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 has been duly authorized by all necessary corporate actionactions of Seller, and has been validly executed and constitutes a valid and binding obligation enforceable in accordance with its terms. The execution, delivery, and performance by Seller of the Agreement will not (iiii) do not contravene conflict with or result in any breach or violation of or default (1or give rise to any right or termination, cancellation, or acceleration) the Seller’s organizational documentsunder its bylaws or its charter or any amendments thereto, or any note, bond, mortgage, indenture, lease, license, permit, agreement, or other instrument or obligation to which Seller is a party or by which it is bound; or (2ii) violate any law, rule order, rule, or regulation applicable to the Seller, (3) any contractual restriction 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 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 consent or approval or other action by, and no notice to or filing with, by any governmental authority or regulatory body is required for in connection with the due execution, delivery and performance of this Agreement by the Seller Seller.
c. The terms and conditions of the Transaction Documents to which it is a party or any this Agreement and all other document instruments and agreements to be delivered by it thereunder except for Seller to Purchaser pursuant to the filing terms of financing statements which this Agreement are referred to therein.
(d) This Agreement valid, binding, 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 (except as enforceability may be limited by their terms, subject only to the applicable bankruptcy, insolvencymoratorium, reorganization or similar and other laws generally affecting the enforcement rights and remedies of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant d. The Seller represents that no commission is due from Seller or Purchaser to this Agreement will constitute any brokers, agents, or finders as a valid sale, transfer, and assignment result of the Transferred Receivables sale of the Shares.
e. No representation or warranty made to the Purchaser, enforceable against creditors ofnor any written statement or certificate furnished or to be furnished to Purchaser in connection with the transaction contemplated by this Agreement, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending orcontains or will contain, to the knowledge of the Seller, threatened, action, investigation or proceeding affecting the Seller or its officers, 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 untrue statement of a class which is registered pursuant material fact, or omits or will omit to Section 12 state, to the knowledge of Seller or its officers, any material fact necessary to make the Securities Exchange Act of 1934representations, (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 lawwarranty, 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestcertificate not misleading.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, together event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Related Security, is owned applicable Transfer Agreement and (immediately prior to its sale hereunderii) by a representation or warranty of 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 Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any interest thereinunder this Agreement, the Related Security sole right or Collections with respect thereto is on file in remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any recording office except such as may be filed in favor applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with the Initial Purchase Agreementthis Section 1.04(b) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the Purchaserrelated Transferor in the applicable Transfer Agreement. Nothing in this Section 4.01(j) The Seller shall constitute 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except 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 otherwise disclosed 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(miv) The names Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and addresses of all the Lock-Box Banks, together with Mortgaged Property has not been released from the account numbers lien of the Lock-Box Accounts at Mortgage, in whole or in part, nor has any instrument been executed that would effect any such Lock-Box Banksrelease, are specified in Exhibit B cancellation, subordination or rescission;
(as v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the same may be updated from time to time pursuant to Section 5.01(g)related Mortgaged Property (including all improvements on the Mortgaged Property). 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 lien of the Seller or any Originator Mortgage is known by or uses any registered tradename or doing-business-as name.
subject only to: (o1) With respect to any programs used in the servicing liens of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agentcurrent real property taxes and assessments not yet due and payable and, if other than IR Company or an affiliate thereofthe related Mortgaged Property is a condominium unit, shall be required to be bound any lien for common charges permitted 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 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 filedstatute, (ii2) timely filed all other material state covenants, conditions and local tax returnsrestrictions, and (iii) paid or made adequate provision for the payment rights of all taxesway, assessments easements 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 matters 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 public record as of the date of this Agreement. Since the date recording of this Agreement, there have been no material changes such Mortgage acceptable to mortgage lending institutions in the Credit area in which the related Mortgaged Property is located and Collection 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 than matters to which like properties are commonly subject which do not, individually or in accordance the aggregate, materially interfere with this Agreement.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;
(tvi) No event or circumstance has occurred since Immediately prior to the date transfer and assignment of this Agreement that has a Material Adverse Effect.
(u) With respect the Mortgage Loans to each Transferred Receivablethe 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) shall have received each Transferred Receivable acquired by it as a contribution 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 capital of locality where the Seller by the applicable Originator 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, 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; 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 have purchased give prompt written notice to the other party. Within 60 days of the discovery of any such Transferred Receivable 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.
(c) Notwithstanding the second paragraph of Section 1.04(b), in connection with the Seller’s representations and warranties made in clause (xiii) of Section 1.04(b), within 90 days of the earlier of discovery by the Seller or receipt of notice from the applicable Originator in exchange for payment (made by Servicer of a breach of any representation and warranty of the Seller to made in clause (xiii) of Section 1.04(b) above, which breach materially and adversely affects the applicable Originator in accordance with the provisions interests of the Initial Purchase AgreementClass X Certificateholders in any Prepayment Charge, the Seller shall, if (i) of cash, deferred purchase price, such representation and warranty is breached and a Principal Prepayment has occurred 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 (ii) shall not have been made for or on account of an antecedent debt owed by any Originator if a change in law subsequent to the Seller and no such sale is or may be voidable or subject to avoidance under any section Closing Date, as applicable, limits the enforceability of the Federal Bankruptcy Code.
Prepayment Charge (vother than in the circumstances set forth in clause (xiii) Each Receivable is an “eligible asset” as defined of Section 1.04(b)), pay, at the time of such Principal Prepayment or change in Rule 3a-7 promulgated under law, the Investment Company Act amount of 1940the scheduled Prepayment Charge, as amended.for the benefit of the holders of the Class X Certificates, by depositing such amount into the Certificate Account no later than
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of DelawareConnecticut, 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, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, Receivables or (iii) the ability of the Seller or the Collection Agent to perform their its 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 and contribution of Receivables hereunder and the Seller’s 's use of the proceeds of Purchases, (i) are within the Seller’s 's corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1A) the Seller’s organizational documents's charter or by-laws, (2B) any law, rule or regulation applicable to the Seller, (3C) any contractual restriction 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 's interest in the 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party this Agreement or any other document to be delivered by it thereunder hereunder except for such as have been accomplished and except for the filing of financing statements which are the UCC Financing Statements referred to thereinin 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 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (North Atlantic Energy Corp /Nh)
Representations and Warranties of the Seller. The Seller (a) ▇▇▇▇▇▇ Capital hereby represents and warrants to the Depositor that as followsof the Closing Date:
(ai) The Seller ▇▇▇▇▇▇ Capital is a corporation duly organized, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereunder.
(b) The execution, execution and delivery and performance by the Seller ▇▇▇▇▇▇ Capital 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 corporate actionaction on the part of ▇▇▇▇▇▇ Capital; 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 ▇▇▇▇▇▇ Capital or its properties or the certificate of incorporation or bylaws of ▇▇▇▇▇▇ Capital;
(iii) the execution, delivery and performance by ▇▇▇▇▇▇ Capital of this Agreement and the consummation of the 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 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 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▇▇▇▇▇▇ Capital and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 ▇▇▇▇▇▇ Capital enforceable against the Seller it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller▇▇▇▇▇▇ Capital, threatenedthreatened or likely to be asserted against or affecting ▇▇▇▇▇▇ Capital, action, investigation before or proceeding affecting the Seller or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin the judgment of ▇▇▇▇▇▇ Capital will be determined adversely to ▇▇▇▇▇▇ Capital and will if determined adversely to ▇▇▇▇▇▇ Capital 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.
(hb) No proceeds The representations and warranties of any Purchase will be used (i) each Transferor with respect 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 Mortgage Loans in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates the 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 Transfer Agreement were 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 Transfer Agreement. To the extent that any fact, condition or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred Receivable and the Related Security and Collections event with respect thereto free and clear to a Mortgage Loan constitutes a breach of any Adverse Claim both (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser), and no effective financing 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(ji) shall constitute a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of ▇▇▇▇▇▇ Capital under this 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 ▇▇▇▇▇▇ Capital 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 Seller related Transferor in the applicable Transfer Agreement. ▇▇▇▇▇▇ Capital 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, ▇▇▇▇▇▇ Capital 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, ▇▇▇▇▇▇ Capital 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 priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or dates respecting which such information is given;
(except ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and ▇▇▇▇▇▇ Capital has no notice as otherwise disclosed 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, 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 Purchaser 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 time) as 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 date so furnished.
(l) 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 principal place of business hazard insurance policy is the valid and chief executive office binding obligation of the Seller insurer, is in full force and the office where the Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to effect, and will be in Section 5.01(b). The Seller has not changed its name during the two years prior full force and effect and inure to the date benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement.
(miv) The names Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and addresses of all the Lock-Box Banks, together with Mortgaged Property has not been released from the account numbers lien of the Lock-Box Accounts at Mortgage, in whole or in part, nor has any instrument been executed that would effect any such Lock-Box Banksrelease, are specified in Exhibit B cancellation, subordination or rescission;
(as v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the same may be updated from time to time pursuant to Section 5.01(g)related Mortgaged Property (including all improvements on the Mortgaged Property). The Lock-Box Accounts 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 only accounts into which Collections aggregate, materially interfere with the benefits of Receivables are deposited the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or remittedequivalent 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, ▇▇▇▇▇▇ Capital was the sole owner of record and holder of each Mortgage Loan, and ▇▇▇▇▇▇ Capital 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 expressly permitted 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 the terms of Section 5.01(h) hereof.this Agreement;
(nvii) None 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 Seller or any Originator 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 known by or uses any registered tradename or doing-business-as name.
(o) 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 programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinder, delay or defraud creditors no prior holder of the Seller.related Mortgage, including ▇▇▇▇▇▇ Capital, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(qviii) The Seller has (i) timely filed all federal tax returns required to be filedTo the best of ▇▇▇▇▇▇ Capital's knowledge, (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 no foreclosure action is being contested in good faith and by proper proceedings, and 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 a 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).premises were intended;
(rix) The Seller 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 notsupervised 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; and
(xii) Each Mortgage Loan is not controlled by, an a “investment companyqualified mortgage” 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 Section 860G of the Originators attached hereto as Exhibit A are in effect as of the date of this AgreementCode and Treas. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this AgreementReg. §1.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as followsto the Purchaser that:
(a) The Seller is a corporation limited partnership duly organized, validly existing and in good standing under the laws of Delawarethe State of Delaware and has the requisite power and authority, and has taken all actions necessary to authorize the Seller to execute, deliver and perform its obligations under this Agreement. The Seller is duly qualified or licensed and in good standing as a foreign limited partnership, and is duly qualified authorized to do business, and is business in good standing, each jurisdiction in every jurisdiction where which the nature ownership or leasing of its business requires it to be so qualifiedrespective properties or the character of its respective operations makes such qualification necessary, unless except where the failure to so qualify obtain such qualification, license, authorization or good standing would not be reasonably expected to have a material and adverse effect on (i) the interests assets, liabilities, financial condition, business operations, or affairs of the Purchaser hereunderSeller and its subsidiaries, (ii) the collectibility of the Transferred Receivablestaken as a whole, or (iiiii) the ability of the Seller and its subsidiaries, taken as a whole, to carry out their business as such business is conducted as of the date hereof, and to meet their obligations and consummate the transactions hereunder (“Partnership Material Adverse Effect”). This Agreement is a valid and binding obligation of the Seller, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The execution and delivery of this Agreement and the Collection Agent definitive agreements regarding the Acquisition expected to perform their respective obligations hereunder.
be entered into concurrently herewith (b) The executionthe “Acquisition Agreements”), delivery the compliance by the Seller with all the provisions of, and the performance by the Seller of its obligations under, this Agreement and the other documents to be delivered by it hereunderAcquisition Agreements, including the Seller’s sale of Receivables hereunder and the Seller’s use consummation of the proceeds transactions contemplated in this Agreement and the Acquisition Agreements, and the issuance and sale by the Seller of Purchasesthe Purchased Units will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) are within the Certificate of Limited Partnership of the Seller or the Seller’s corporate powersAmended and Restated Agreement of Limited Partnership, as amended (the “Partnership Agreement”), (ii) any instrument, contract, bond, credit agreement or other agreement to which the Seller or any of its subsidiaries is a party or by which the Seller or any of its subsidiaries is bound or to which any properties or assets of the Seller of any of its subsidiaries may be bound or subject, in each case, which breach, violation or default under which would be reasonably expected to have been duly authorized by all necessary corporate actiona Partnership Material Adverse Effect, or (iii) do not contravene (1) the Seller’s organizational documents, (2) any lawlaw or statute or any order, rule or regulation applicable to the Sellerof any court or governmental agency or body or any stock exchange authority or self-regulatory organization (each, (3) any contractual restriction binding on or affecting a “Governmental Authority”), in each case having jurisdiction over the Seller or any of its property subsidiaries or (4) any of their properties; and, other than the listing of the Purchased Units purchased hereby and the filing of the Prospectus if the Registration Condition is applicable, no consent, approval, authorization, order, writregistration, judgmentclearance or qualification or notification of, award, injunction with or decree binding on or affecting to any Governmental Authority is required for the sale and delivery of the Purchased Units being sold by the Seller or its propertyto the Purchaser under this Agreement. The execution and delivery of this Agreement, the compliance by the Seller with all the provisions of, and (iv) the performance by the Seller of its obligations under this Agreement, the consummation of the transactions contemplated by this Agreement, and the issuance and sale by the Seller of the Purchased Units do not and will not result in or require the creation or imposition of any lien, encumbrance, claim, charge or security interest or other charge or encumbrance upon or with respect to any of its the properties (except for the transfer of the Seller’s interest Seller and its subsidiaries now owned or hereafter acquired.
(b) The Purchaser, when such Purchased Units are delivered against payment therefor as provided in the Transferred Receivables pursuant to this Agreement). This , will be entitled to the rights of a unitholder of limited partner interests of the Seller conferred by the Partnership Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto has been duly executed and delivered by the Sellerapplicable law.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body from the outstanding holders of the Seller’s common units is required for in connection with the due execution, delivery Seller’s issuance and performance sale of the Purchased Units to the Purchaser hereunder. The Purchased Units being purchased by the Purchaser hereunder and the limited partner interests represented thereby will be duly authorized by the Seller pursuant to the Partnership Agreement and, when issued and delivered to the Purchaser against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Section 17-607 of the Transaction Documents Delaware Revised Uniform Limited Partnership Act) and will be free of restrictions on transfer, other than restrictions on transfer under the Partnership Agreement or this Agreement and under applicable state and federal securities laws. Such Purchased Units are not subject to which it is a party any conflicting sale, transfer, assignment, or any agreement (other document than this Agreement) to be delivered by it thereunder except for assign, convey, or transfer, in whole or in part, any of such Purchased Units, and upon consummation of such Purchase, the filing Purchaser will receive valid title to such Purchased Units, free and clear of financing statements which are referred to thereinany encumbrance, liens, claims, charges, security interests, or other interests of others.
(d) This Agreement and each of the other Transaction Documents to be delivered Except as disclosed by the Seller pursuant hereto constitutes in the legalPartnership Information (as defined in Section 5 below), valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization there are no legal or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant governmental proceedings pending to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened, action, investigation or proceeding affecting which the Seller or any of its subsidiaries before is a party or of which any courtproperty of the Seller or any of its subsidiaries is the subject that, governmental agency if determined adversely to the Seller, would individually or arbitrator which may in the aggregate be reasonably expected to have a Purchaser Material Adverse Effect, and, to the best of the Seller’s knowledge, no such proceedings are threatened or contemplated by any Governmental Authority or third party.
(he) No proceeds of The documents included in the Partnership Information (as defined in Section 5 below), including any Purchase will be used (i) audited or unaudited financial statements and any notes thereto or schedules included therein, when they were filed with the Commission, conformed in all material respects to acquire any equity security of a class which is registered pursuant to Section 12 the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder, fairly present (subject in the case of unaudited statements to normal, recurring and year-end audit adjustments) in all material respects the consolidated financial position and status of the business of the Seller as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended, and none of such documents contained any untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is an independent public accounting firm with respect to the Seller and its General Partner and has not resigned or been dismissed as independent public accountants of the Seller as a result of or in connection with any disagreement with the Seller on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(f) Except as disclosed in the documents filed by the Seller under the Exchange Act on or prior to the date hereof and except for the Acquisition, since the date of the Seller’s most recent Form 8-K (to the extent it contains financial results and balance sheet information) or Form 10-Q filing with the Commission, the Seller and its subsidiaries have conducted their respective businesses in the ordinary course, consistent with past practice, and there has been no change, event, occurrence, fact, circumstance or condition that has had or would be reasonably likely to have a Partnership Material Adverse Effect.
(g) In the event that the Registration Condition is applicable, (i) a registration statement on Form S-3 (File No. 333-107324) with respect to the Purchased Units (A) has been prepared by the Seller in conformity with the requirements of the Act and the rules and regulations thereunder; (B) has been filed with the Commission under the Act; and (C) has become effective under the Act, (ii) to acquire the Commission has not issued any security in order preventing or suspending the use of the Registration Statement or any transaction which is subject to Section 13 or 14 of such Act or prospectus relating thereto, and (iii) for any other purpose that violates applicable lawcopies of such Registration Statement and each of the amendments thereto, if any, have been delivered by the Seller to the Purchaser. As used in this Agreement, “Registration Statement” means the registration statement referred to above, as amended; and “Prospectus” means the final prospectus supplement relating to the Purchased Units and the offering thereof, including Regulation G or U the accompanying base prospectus, as first filed with the Commission pursuant to Rule 424(b) under the Act after the date and time this Agreement is executed. Reference made herein to the Prospectus shall be deemed to refer to and include any information incorporated by reference therein pursuant to Item 12 of Form S-3 under 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 isAct, as of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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)Prospectus, and no effective financing statement any reference to any amendment 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as supplement to the priorityProspectus shall be deemed to refer to and include any document filed under the Exchange Act, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to after the date of this Agreement.
(m) The names the Prospectus 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 known incorporated by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used reference in the servicing of Prospectus. Neither the Receivables, no sublicensing agreements are necessary in connection with Registration Statement nor the designation Prospectus contains an untrue statement of a new Collection Agent pursuant material fact or omits to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be state a material fact required to be bound by a confidentiality agreement reasonably acceptable stated therein or necessary to make the applicable Originator), except for those programs licensed from Persons which are statements therein 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 sublicensingmisleading.
(p) The 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Units Purchase Agreement (Energy Transfer Partners, L.P.)
Representations and Warranties of the Seller. The Seller represents and warrants as followsto the Purchasers that:
(a) The Seller is a corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, 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, unless the failure to so qualify would not 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 perform their respective obligations hereunder.
(b) The Seller has all requisite power and authority to execute and deliver this Agreement and that certain Letter Agreement (the "Letter Agreement"), dated as of the date hereof, the form of which is attached as Exhibit A hereto, and to perform its obligations hereunder and thereunder. The Seller has authorized the execution, delivery and performance by of this Agreement, and each of the Seller of transactions contemplated hereby and thereby. No other action (including shareholder approval) is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement and the other documents to be delivered by it hereunder, including the Seller’s sale Letter Agreement shall constitute valid and binding obligations 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 corporate 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (their terms, except as enforceability to the extent that enforcement hereof and thereof may be limited by applicable bankruptcy, insolvencymoratorium, reorganization insolvency or other similar laws affecting the enforcement of creditors’ ' rights generally and general principles of equity, whether considered in an action at law or equity)equitable principles.
(ec) Sales made Except pursuant to the applicable requirements of the HSR Act, no consent, approval, authorization or order of any court, governmental agency or body or arbitrator having jurisdiction over the Seller is required for the execution or delivery by the Seller of this Agreement will constitute a valid saleor the Letter Agreement, transferor performance by the Seller of its obligations hereunder or thereunder, and assignment including without limitation the sale of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred ReceivableSecurities.
(fd) [Intentionally omitted.]
Neither the sale of the Securities nor the performance of the Seller's obligations hereunder or under the Letter Agreement will violate, conflict with, result in a breach of, or constitute a default (gor an event that, with the giving of notice or the lapse of time, or both, would constitute a default) There is no pending orunder (i) the certificate of incorporation, to the knowledge bylaws or other organizational documents of the Seller, threatened(ii) any decree, actionjudgment, investigation order, law, treaty, rule, regulation or proceeding affecting determination of any court, governmental agency or body or arbitrator having jurisdiction over the Seller or any of its subsidiaries before any court, governmental agency assets 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 properties or (iii) for the terms of any other purpose that violates applicable law, including Regulation G material agreement to which the Seller is a party or U to which any of the Federal Reserve BoardSeller's properties is subject.
(ie) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized in any The Securities have been duly authorized and validly issued, and are fully paid and nonassessable. The Seller Report or other written statement made by or on behalf of has good and marketable title to 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 ReceivableSecurities. Each Transferred Receivable, together with the Related Security, is The Securities are owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim security interest, lien, claim or other legal or equitable encumbrance or any restriction on transfer (collectively, "Encumbrances"), other than any Adverse Claim arising solely those imposed by the Securities Act and that certain Stockholders Agreement (the "Stockholders Agreement"), dated as of June 7, 2000, by and among the result Institutional Investors listed on Schedule I thereto, the individuals listed on Schedule II thereto, QMOC and the Company, and will be transferred to the Purchaser free of any action taken by Encumbrances. The Securities represent the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 statement or other instrument similar in effect covering any Transferred Receivable, any entire equity 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security InterestCompany.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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.
(pf) The sale of Transferred Receivables the Securities by the Seller is not part of a plan or scheme to evade the Purchaser pursuant to registration requirements of the Securities Act. Neither the Seller nor any person acting on behalf of the Seller has offered or sold any of the Securities by any form of general solicitation or general advertising.
(g) Other than as specifically set forth in this Agreement, and all other transactions between the Seller and the Purchasermakes no representation or warranty. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, have been and will be made in good faith and without intent to hinderALL REPRESENTATIONS AND WARRANTIES, delay or defraud creditors of the SellerEXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED.
(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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business, business and is in good standing, standing as a foreign limited liability company in every jurisdiction where the nature of its business requires it to be so qualified, unless except where the failure to be so qualify qualified would not 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 perform their respective obligations hereunderMaterial 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, Investments and Reinvestments: (i) are within the Seller’s corporate its organizational powers, ; (ii) have been duly authorized by all necessary corporate 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 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 the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the its due execution, delivery and performance by the Seller of the Agreement or any other Transaction Documents Document to which it is a party or any party, other document to be delivered by it thereunder except for than the filing of financing statements which are Uniform Commercial Code filings referred to thereinin Exhibit II to the Agreement, all of which shall have been filed on or before the Closing Date.
(d) This Each of the Agreement and each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ ' rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing standing, under the laws of Delaware, the applicable jurisdiction set forth in Exhibit B hereto (as such Exhibit B may be amended from time to time pursuant to Section 5.01(b)) 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, unless the failure to so qualify would not 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 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 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 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party this Agreement or any other document to be delivered by it thereunder except for the filing of financing statements which are referred to thereinhereunder.
(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 (except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of relating to or limiting creditors’ rights generally and by general principles of equity, equity (regardless of whether considered enforcement is sought in an action a proceeding in equity or at law or equitylaw).
(e) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omittedThe balance sheets of the Seller and its subsidiaries as at December 31, 2008, and the related statements of income and retained earnings of the Seller and its 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 subsidiaries as at such date and the results of the operations of the Seller and its subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2008 no event has occurred that would have a Material Adverse Effect.]
(g) There is no pending or, to the knowledge of the Seller’s knowledge, threatened, threatened action, investigation or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have materially adversely affect the financial condition or operations of the Seller and its consolidated subsidiaries, when taken as a Material Adverse Effectwhole, or the ability of the Seller to perform its obligations under this Agreement or any other document to be delivered by it hereunder, or which purports to affect the legality, validity or enforceability of this Agreement or any other document to be delivered by it hereunder.
(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, (iiprovided that this Section 4.01(h) to acquire any security shall not prohibit the Seller from purchasing equity securities of Ferro, Ferro Color or FPL in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any other purpose that violates accordance with 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 included in any Seller the Net Pool Balance on a Monthly Report or other written statement made by or on behalf of the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, was an Eligible Receivable as of the date last day of the month covered by such Seller Report or other statement, an Eligible ReceivableMonthly Report. 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 Transferred 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 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 the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with this Agreement, in favor of the Seller in accordance with the First-Step 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 warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) 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 make the 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). The Seller has not changed its name during is located in the two years prior jurisdiction of organization set forth in Exhibit B hereto for purposes of Section 9-307 of the UCC as in effect in the State of New York; and the office in the jurisdiction of organization of the Seller in which a UCC financing statement is required to be filed in order to perfect the date of this Agreementsecurity interest granted by the Seller hereunder is set forth in Exhibit B hereto (in each case as such Exhibit B may be amended from time to time pursuant to 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 A (as the same may be updated from time to time pursuant to Section 5.01(g5.01(h)). 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 The Seller or any Originator is not known by or uses and does not use any registered tradename or doing-business-as name, other than, as set forth in Exhibit F hereto, as such Exhibit F may be amended from time to time to remove any tradenames or doing-business-as names upon request of the Seller with the prior written approval of the Purchaser.
(o) With respect to any programs used by the Seller in the servicing of the Receivables, no such Seller shall pay any necessary fees associated with any sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereofthe Seller, shall be required to be bound by a confidentiality agreement reasonably acceptable to the applicable OriginatorSeller, Ferro Color and FPL), 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 sale 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.
(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 returnsreturns (other than with respect to such state and local tax returns for the tax year 2005, which have been filed prior to the date hereof) 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). The Seller will also pay when due any taxes payable in connection with the Receivables transferred by it, exclusive of taxes on or measured by income or gross receipts of Purchaser and its assigns.
(r) 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 is exempt from all provisions of such actany successor statute.
(s) The receivables Seller has complied in all respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each Receivable originated by the Seller, together with the Contract related thereto, does not contravene any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and collection policies privacy), and practices no part of the Originators attached hereto as Exhibit A are such Contract is in effect as violation of the date of this Agreement. Since the date of this Agreementany such law, there rule or regulation, except where such contravention or violation could not reasonably be expected to 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.
(ut) 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made transferred hereunder by the Seller to Purchaser, the applicable Originator in accordance with Purchase Price received by the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which Seller constitutes fair consideration and reasonably equivalent value, value in consideration therefor and each such sale referred to in the foregoing clause (ii) shall transfer was not have been made for or on account of an antecedent debt owed debt. No transfer by any Originator to the Seller and no such sale of any Receivable hereunder is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy CodeReform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.
(u) Each Contract with respect to each Receivable originated by the Seller 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).
(v) Each Receivable originated by the Seller is an “eligible assetaccount” under and as defined in Rule 3a-7 promulgated under the Investment Company Act UCC of 1940, as amendedall applicable jurisdictions.
(w) The manner in which the Seller accounts for the transactions contemplated by this Agreement does not jeopardize the true sale analysis.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business, business and is in good standing, standing as a foreign limited liability company in every jurisdiction where the nature of its business requires it to be so qualified, unless except where the failure to be so qualify qualified would not 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 perform their respective obligations hereunderMaterial 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, Investments and Reinvestments: (i) are within the Seller’s corporate its organizational powers, ; (ii) have been duly authorized by all necessary corporate 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 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 the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement)properties. This The Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto 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 for the its due execution, delivery and performance by the Seller of the Agreement or any other Transaction Documents Document to which it is a party or any party, other document to be delivered by it thereunder except for than the filing of financing statements which are Uniform Commercial Code filings referred to thereinin Exhibit II to the Agreement, all of which shall have been filed on or before the Closing Date.
(d) This Each of the Agreement and each of the other Transaction Documents to be delivered by which the Seller pursuant hereto is a party constitutes the its legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in an action a proceeding in equity or at law or equity)law.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller’s best knowledge, threatened, action, investigation threatened action or proceeding affecting the Seller or any of its subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator which may have a Material Adverse Effectarbitrator.
(hf) No proceeds of any Purchase Investment or Reinvestment will be used (i) to acquire any equity security of a class which that 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.
(ig) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
The Seller is the legal and beneficial owner of, and has good and marketable title to, the Pool Receivables, the Lock-Box Accounts (jand related lock-boxes) 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 and Related Security, is owned (immediately prior to its sale hereunder) by the Seller free and clear of any Adverse Claim Claim. Upon each Investment or Reinvestment, the Administrator (other than any Adverse Claim arising solely as on behalf of the result of any action taken by the Purchaser). When the Purchaser makes a Purchase it Purchasers) shall acquire a valid and enforceable perfected first priority ownership of or security interest in each Transferred Pool Receivable then existing or thereafter arising and in the Related Security Security, Collections and Collections other proceeds with respect thereto thereto, free and clear of any Adverse Claim Claim. The Agreement creates a valid and continuing ownership or security interest (other than any Adverse Claim arising solely as defined in the result of any action taken by the Purchaser), and no effective financing 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 applicable UCC) in favor of the Administrator in the Pool Assets and the Lock-Box Accounts (and related lock-boxes), which ownership or 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 accordance with the Initial Purchase Agreement, proper filing offices in favor the appropriate jurisdictions under Applicable Laws in order to perfect the ownership or security interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes) granted to the Administrator (on behalf of Purchaser in accordance with the Purchasers) hereunder. Other than the ownership or security interest granted to the Administrator (on behalf of the Purchasers) pursuant to this 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 PurchaserPool Assets, other than any UCC financing statement relating to the security interest granted to the Administrator (on behalf of the Purchasers) hereunder or that has been terminated. Nothing 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 original copies of the tangible chattel paper that constitutes or evidences such Pool Receivables, and the Seller has filed the financing statements described in this Section 4.01(j) shall constitute section above, each of which will contain a representation statement that “A purchase of or warranty 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 as to or the priority, as against any other secured creditors Administrator (on behalf of the relevant Obligor, of any Underlying Inventory Security InterestPurchasers).
(kh) Each Seller Report Information Package (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or one of its Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished 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 Administrator or such Purchaser Agent, as applicable, at such time) as of the date so furnished.
(li) 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 concerning the Transferred Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior Sections l(b) and 2(b) of Exhibit IV to the date of this Agreement.
(mj) 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 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 same may be updated from time to time pursuant to Section 5.01(g)). The Administrator in accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements. With respect to all Lock-Box Accounts (and related lock-boxes), the only accounts into which Collections Seller has delivered to the Administrator, on behalf of Receivables are deposited or remittedthe Purchasers, except as expressly permitted a fully executed Lock-Box Agreement pursuant to which the terms applicable Lock-Box Bank has agreed to comply with all instructions given by the Administrator with respect to all funds on deposit in such Lock-Box Account (and all funds sent to the respective lock-box), without further consent by the Seller or the Servicer. None of Section 5.01(hthe Lock-Box Accounts (and the related lock-boxes) hereofare 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) The Seller is not in violation of any order of any court, arbitrator or Governmental Authority.
(l) No proceeds of any Investment or Reinvestment will be used for any purpose that violates any Applicable Law, including Regulations T, U or X of the Federal Reserve Board.
(m) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(n) None No event has occurred and is continuing, or would result from an Investment or Reinvestment or from the application of the Seller proceeds therefrom, that constitutes a Termination Event or any Originator is known by or uses any registered tradename or doing-business-as namean Unmatured Termination Event.
(o) With respect to any programs used in the servicing The Seller has accounted for each sale of the ReceivablesReceivables and the other Purchased Assets in its books and financial statements as sales, no sublicensing agreements are necessary in connection consistent with the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sublicensinggenerally accepted accounting principles.
(p) The sale Seller has complied in all material respects with the Credit and Collection Policy of Transferred Receivables the Originators with regard to each Receivable originated 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 SellerOriginators.
(q) The Seller has (i) timely filed complied in all federal tax returns required material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable 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)it.
(r) 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 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(1)(iv) of Exhibit IV to the Agreement.
(s) The Seller is not, and is not controlled by, (i) required to register as an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), or is exempt from all provisions of such act.
(sii) The receivables credit and collection policies and practices a “covered fund” under Section 13 of the Originators attached hereto U.S. Bank Holding Company Act of 1956, as Exhibit A are amended, and the applicable rules and regulations thereunder. In reaching such determination, the Seller is entitled to rely on the exemption from the definition of “investment company” set forth in effect as Section 3(c)(5) of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this AgreementInvestment Company Act.
(t) No event Covered Entity is a Sanctioned Person. No Covered Entity, either in its own right or circumstance through any third party, (i) has occurred since any of its assets in a Sanctioned Country or in the date possession, custody or control of this Agreement that has a Material Adverse EffectSanctioned Person in violation of any Anti-Terrorism Law; (ii) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (iii) engages in any dealings or transactions prohibited by any Anti-Terrorism Law.
(u) With respect The Seller has not, does not and will not (x) issue any obligations that (A) constitute asset-backed commercial paper, or (B) are securities required to each Transferred Receivablebe registered under the Securities Act of 1933 (the “33 Act”) or that may be offered for sale under Rule 144A or a similar exemption from registration under the 33 Act or the rules promulgated thereunder, or (y) issue any other debt obligations or equity interests other than the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution Company Note or debt obligations substantially similar to the capital obligations of the Seller by the applicable Originator such Borrower under this Agreement that are (A) issued to other banks or asset-backed commercial paper conduits in privately negotiated transactions, and (iiB) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller subject to transfer restrictions substantially similar to the applicable Originator transfer restrictions set forth in accordance this Agreement. The Seller further represents and warrants that its assets and liabilities are consolidated with the provisions assets and liabilities of the Initial Purchase Agreement) Peabody for purposes 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 (ii) 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 Codegenerally accepted accounting principles.
(v) Each Receivable There are no mortgages that are effective as financing statements covering as-extracted collateral that constitutes Purchased Assets and that name any Originator (or, if such Originator is an not the “eligible assetrecord owner” as defined in Rule 3a-7 promulgated under of the Investment Company Act of 1940underlying property, any “record owner” with respect to such as-extracted collateral, as amendedsuch term is used in the UCC) as grantor, debtor or words of similar effect filed or recorded in any jurisdiction.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Representations and Warranties of the Seller. The As an inducement to the Company to enter into this Agreement and consummate the transaction contemplated hereby, the Seller represents hereby makes the following representations and warrants warranties, each of which is materially true and correct on the date hereof and will be materially true and correct as followsof the date of this Agreement:
(a) 3.1 The Seller is a corporation duly organized, validly existing the record and in good standing under the laws beneficial owner of Delaware, 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, unless the failure to so qualify would not have a material adverse effect on (i) the interests all of the Purchaser Shares and the Seller owns the Shares, free of any claim, lien, security interest or encumbrance of any nature or kind and, as such, has the exclusive right and full power to sell, transfer and assign the Shares free of any such claim, lien, security interest or encumbrance;
3.2 The Seller has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, (ii) . This Agreement constitutes the collectibility valid and legally binding obligation of the Transferred ReceivablesSeller, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereunder.
(b) enforceable in accordance with its terms. The execution, delivery delivery, and performance by the Seller of this Agreement and the all 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) agreements contemplated hereby have been duly authorized by all necessary corporate action, (iii) the Seller;
3.3 The execution and delivery of this Agreement by the Seller and the observance and performance of the terms and provisions contained herein do not contravene (1) the Seller’s organizational documents, (2) constitute a violation or breach of any applicable law, rule or any provision of any other contract or instrument to which the Seller is a party or by which it is bound, or any order, writ, injunction, decree, statute, rule, by-law or regulation applicable to the Seller, (3) any contractual restriction binding on or affecting ;
3.4 The Seller has received all of the information that the Seller considers necessary or its property appropriate for deciding whether to sell the Shares hereunder and perform the other transactions contemplated hereby.
3.5 No insolvency proceedings of any character, including without limitation, bankruptcy, receivership, reorganization, composition or (4) any orderarrangement with creditors, writvoluntary or involuntary, judgment, award, injunction or decree binding on or affecting designating the Seller as the bankrupt or its propertythe insolvent, 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened and the Seller has not made an assignment for the benefit of creditors, nor has Seller taken any action with a view to, or which would constitute the basis for, the institution of any such insolvency proceedings;
3.6 There are no actions, suits, or proceedings pending or, to the best of the Seller’s knowledge, threatened, action, investigation which could in any manner restrain or proceeding affecting prevent 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 from effectually and legally selling the Shares pursuant to Section 12 the terms and provisions of this Agreement;
3.7 The Seller has no liability or obligation to pay fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement;
3.8 The Seller has evaluated the merits and risks related to the sale of the Securities Exchange Act of 1934Shares based exclusively on its own independent review and consultations with such investment, (ii) to acquire any security in any transaction which is subject to Section 13 or 14 of such Act or (iii) for any legal, tax, accounting and 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 advisers 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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)deemed necessary. The Seller has made its own decision concerning the sale of the Shares without reliance on any representation or warranty of, or advice from, the Company other than the representations made in this Agreement;
3.9 The Seller acknowledges and understands that the Company and some of its other affiliates may possess material nonpublic information regarding the Company not changed its name during the two years prior known to the date of this Agreement.
(m) The names and addresses of all Seller that may impact the Lock-Box Banks, together with the account numbers value of the Lock-Box Accounts at such Lock-Box BanksShares (the “Information”), are specified in Exhibit B (as and that the same may be updated from time Company is not disclosing the Information 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used in the servicing of the Receivablesits affiliates, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood thatprincipals, howeverstockholders, partners, employees and agents. The Seller understands, based on its experience, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required disadvantage to be bound by a confidentiality agreement reasonably acceptable which the Seller is subject due to the applicable Originator), except for those programs licensed from Persons which are not affiliated with the applicable Originator which by the express terms disparity of such license either (i) require the consent of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions information between the Seller and the PurchaserCompany. Notwithstanding such disparity, have been the Seller has deemed it appropriate to enter into this Agreement and will be made in good faith and without intent to hinder, delay or defraud creditors consummate the transaction contemplated thereby;
3.10 The Seller agrees that none of the Company, its other affiliates, stockholders, employees and agents shall have any liability to 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 returnsits affiliates, manager, members, employees, and (iii) paid agents, whatsoever due to or made adequate provision for in connection with the payment of all taxes, assessments and other governmental charges (other than any tax, assessment Company’s use 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 non-disclosure of the Investment Company Act of 1940, Information or is exempt from all provisions of such act.
(s) The receivables credit and collection policies and practices otherwise as a result of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. Since the date of transaction contemplated by 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 hereby irrevocably waives any claim that it might have received each Transferred Receivable acquired by it as a contribution to based on the capital failure of the Seller by Company to disclose the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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 CodeInformation.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. (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, validly existing and in good standing under the laws of Delaware, the State of Colorado and is duly qualified to do business, business and is in good standing, in every 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, unless the failure to so qualify would not have a material adverse effect on the Seller). The Seller has the full power and authority (icorporate and other) 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 perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 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 for assuming the due executionauthorization, execution and delivery hereof by FAIC II) constitutes the valid, legal and performance by the Seller binding agreement of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 legalSeller, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable terms, subject to bankruptcy, insolvency, reorganization reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and to general principles of equity, regardless of whether considered such enforcement is sought in an action a proceeding in equity or at law or equity)law.
(e4) Sales made pursuant to No consent, approval, authorization or order of or registration or filing with, or notice to, any governmental authority or court is required for the execution, delivery and performance of or compliance by the Seller with this Agreement will constitute a valid sale, transfer, and assignment or the consummation by the Seller of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivableother transaction contemplated hereby.
(f5) [Intentionally omitted.]
Neither the execution and delivery of this Agreement by the Seller, nor the consummation by the Seller of the transactions herein contemplated, nor compliance with the provisions hereof by the Seller, will (gA) There is no pending orconflict with or result in a breach of, to or constitute a default under, any of the knowledge provisions of the Seller's articles of incorporation or by-laws, threatenedor any law, actiongovernmental rule or regulation, investigation or proceeding affecting any judgment, decree or order binding on the Seller or any of its subsidiaries before properties, or any courtof the provisions of any indenture, governmental agency mortgage, deed of trust, contract or arbitrator other instrument to which may 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 Effectmaterial adverse effect upon any of the Seller's properties pursuant to the terms of any such indenture, mortgage, deed of trust, contract or other instrument.
(h6) No proceeds The Seller is not, and with passage of any Purchase will be used (i) time does not expect to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934become, (ii) to acquire any security in any transaction which is subject to Section 13 insolvent or 14 of such Act or (iii) for any other purpose that violates applicable law, including Regulation G or U of the Federal Reserve Boardbankrupt.
(i7) No transaction contemplated hereby requires compliance with any bulk sales act There are no actions, suits, proceedings or similar lawinvestigations pending or, to the Seller's knowledge, threatened against the Seller that should reasonably be expected to affect adversely the transfer of the Mortgage Loans, the issuance of the Bonds, or the execution, delivery, performance or enforceability of this Agreement or have a material adverse effect on the financial condition of the Seller.
(j) Each Receivable characterized in any 8) The Seller Report is, and, immediately prior to the sale of the Mortgage Loans to FAIC II, the Seller will be, the sole owner of, and will have good, indefeasible and marketable title to, the Mortgage Loans, subject to no prior lien, mortgage, security interest, pledge, charge or other written statement made by encumbrance, except any lien to be released prior to or on behalf concurrently with the purchase of the Mortgage Loans by FAIC II. Following the 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 to FAIC II, or its designee, is recorded), except the lien created by the Indenture.
(whether as Collection Agent or otherwise1) as an Eligible Receivable isAs to each Mortgage Loan, the Seller hereby represents and warrants to FAIC II as of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with 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 any Adverse Claim arising solely the sale of the Mortgage Loans to FAIC II.
(3) The Seller will treat the transfer of the Mortgage Loans to FAIC II as a sale on its books and records in accordance with generally accepted accounting principles.
(4) With respect to each Mortgage Loan, the result Seller is in possession of any action taken by each of the Purchaser. Nothing 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 Section 4.01(jAgreement).
(5) shall constitute a representation or warranty The transfer, assignment and conveyance of the Mortgage Loans by the Seller as pursuant to this Agreement are not subject to the priority, as against bulk transfer or any other secured creditors of the relevant Obligor, of similar statutory provisions in effect in any Underlying Inventory Security Interestapplicable jurisdiction.
(k6) Each The Seller Report (if prepared 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's portfolio of adjustable-rate residential mortgage loans.
(7) The description of those Mortgage Loans that had been identified as of September 1, 1997 (the "Initial Mortgage Loans") set forth in the Prospectus Supplement under the heading "Description of the Mortgage Pool" does not contain any untrue statement of any material fact or to the extent that information contained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or omit any material fact required to be furnished at any time by stated therein or necessary in order to make the Seller to statements contained therein, in light of the Purchaser circumstances under which they are made, not misleading.
(8) The information set forth in connection with this Agreement the Mortgage Loan Schedule hereto is or will be accurate true and correct in all material respects in the case of each Mortgage Loan, as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnishedrespective Cut-off Date.
(l9) The principal place of business and chief executive office consideration received by the Seller upon the sale of the Seller Mortgage Loans under this Agreement constitutes fair consideration and reasonably equivalent value for 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). The Seller has not changed its name during the two years prior to the date of this AgreementMortgage Loans.
(m10) The names Seller is solvent, and addresses of all the Lock-Box Banks, together with the account numbers sale of the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit B (Mortgage Loans 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 contemplated hereby will not cause the Seller or any Originator is known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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) become insolvent. The sale of Transferred Receivables by the Seller to Mortgage Loans is not undertaken with 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 the Seller's creditors.
(q11) The Seller has intends to relinquish all rights to possess, control and monitor the Mortgage Loans sold pursuant to this Agreement (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 except such rights as are entailed in its serving as 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 Servicer 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 Mortgage Loans under the Originators attached hereto as Exhibit A are in effect as of Servicing Agreement). After the date of this Agreement. 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 ReceivableClosing Date, the Seller (i) shall will have received each Transferred Receivable acquired by it as a contribution no right to modify or alter the capital terms of the Seller by sale of the applicable Originator or Mortgage Loans (ii) shall have purchased except such Transferred Receivable from rights as are entailed in its serving as the applicable Originator in exchange for payment (made by Servicer of the Mortgage Loans under the Servicing Agreement), and the Seller will have no right or obligation to the applicable Originator repurchase any Mortgage Loan or substitute another mortgage loan for any Mortgage Loan sold hereunder, except as provided in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration Sections 3 and reasonably equivalent value, and each such sale referred to in the foregoing clause (ii) 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 Code7 hereof.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Mortgage Loan Sale Agreement (Fund America Investors Corp Ii)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it as presently conducted and to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans contained 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 Transfer Agreement were 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred Receivable Transfer Agreement and the Related Security and Collections Closing Date. To the extent that any fact, condition or event with respect thereto free and clear to a Mortgage Loan constitutes a breach of any Adverse Claim both (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser), and no effective financing 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(ji) shall constitute 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 of such representation and warranty (other than a breach by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(krepresentations and warranties made pursuant to Sections 1.04(b)(vii) Each Seller Report (if prepared by and 1.04(b)(viii) hereof) shall be the Seller, or right to enforce 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 its date or (except as otherwise disclosed to the Purchaser at such time) as obligations of the date so furnished.
(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 Transferor under such applicable representation or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (warranty made by the Seller to Transferor. To such extent, the applicable Originator in accordance with Transferor has acknowledged the provisions of the Initial Purchase Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration Pooling Agreement and reasonably equivalent value, its duties and each such sale referred to in the foregoing clause (ii) 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 obligations under any section of the Federal Bankruptcy Code.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.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. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every the jurisdiction where indicated at the nature beginning of its business requires it to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations 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 's corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) action and do not contravene (1i) the Seller’s organizational documents's charter or by-laws, (2ii) any law, rule law or regulation applicable to the Seller, (3) any contractual restriction 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 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 authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder except for the filing of financing statements which are referred to thereinthis Amendment.
(d) This Agreement and each of the other Transaction Documents to be delivered by the Seller pursuant hereto Amendment constitutes the a legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened, or overtly threatened action, investigation suit, 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, governmental agency or before any arbitrator which may have a Material Adverse Effect.
(h) No proceeds of any Purchase will be used kind, or before or by any governmental body, which, taking into account its probability of success, may materially adversely affect the financial condition the Seller or the Seller and its Consolidated Subsidiaries taken as a whole (iother than the litigation as described on Schedule A hereto (the "Current Litigation")) to acquire any equity security of a class which is registered pursuant to Section 12 of or materially adversely affect 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 ability of the Seller (whether as Collection Agent to perform its obligations under this Amendment, or otherwise) as an Eligible Receivable is, as of the date of such Seller Report Purchase and Sale Agreement or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial Parallel Purchase Agreement, each as amended hereby; there has been no adverse change in favor of Purchaser in accordance with this Agreementthe 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 nor any of its Subsidiaries is in connection default with respect to any Adverse Claim arising solely as the result order of any action taken by the Purchaser. Nothing in this Section 4.01(j) shall constitute a representation court, arbitrator or warranty by the Seller as governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by the Seller, business 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 operations of the Seller or any Originator is known by or uses any registered tradename or doing-business-as nameof its Subsidiaries.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it to be so qualified, unless as presently conducted and enter into and perform its obligations under the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, Assignment Agreements and this Agreement;
(ii) the collectibility of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereunder.
(b) The execution, execution and 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 of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1) action on the part of the Seller’s organizational documents; neither the execution and delivery of the Assignment Agreements or this Agreement, (2) nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, rule governmental rule, regulation, judgment, decree or regulation applicable to the Seller, (3) any contractual restriction order binding on or affecting the Seller or its property properties or (4) any order, writ, judgment, award, injunction the certificate of incorporation 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 bylaws of the Seller’s interest in the 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.;
(ciii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party Assignment Agreements and this Agreement and the consummation of the transactions contemplated thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other document action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to be delivered by it thereunder except for the filing of financing statements which are referred to therein.date hereof;
(div) This Agreement and each of the other Transaction Documents to be Assignment Agreements and this Agreement has been duly executed and delivered by the Seller pursuant hereto and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment Agreements, and the Depositor, in the case of this Agreement, constitutes the legal, a valid and binding obligation of the Seller enforceable against the Seller it in accordance with its terms (respective terms, except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by the Assignment Agreements or arbitrator this Agreement or (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The Seller represents and warrants upon delivery of the Securities Exchange Act of 1934Mortgage Loans to the Depositor hereunder, (ii) as 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 laweach that, including Regulation G or U as of the Federal Reserve Board.Closing Date:
(i) No transaction contemplated hereby requires compliance The information set forth with any bulk sales act 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 similar law.dates respecting which such information is given;
(jii) 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 ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. 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 Receivable characterized Mortgage has not been satisfied, cancelled, subordinated or rescinded, in any Seller Report whole or other written statement made by or on behalf in part, and the Mortgaged Property has not been released from the lien of the Seller Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(whether as Collection Agent or otherwisev) as an Eligible Receivable isThe 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 Seller Report 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 statementmatters to which like properties are commonly subject which do not, an Eligible Receivable. Each Transferred Receivableindividually or in the aggregate, together materially interfere with the Related Securitybenefits of the security intended to be provided by the Mortgage. Any security agreement, is owned 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;
(immediately vi) Immediately prior to its sale hereunder) by 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 clear, except as described in paragraph (v) above, of any Adverse Claim 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 Adverse Claim arising solely as Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the result form and substance of any action taken 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 Purchaser). When jurisdiction where the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership Mortgaged Property is located, insuring the originator of each Transferred 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)Mortgage Loan, and no effective financing statement or other instrument similar in effect covering any Transferred Receivableits successors and assigns, 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors first priority lien of the relevant Obligor, Mortgage in the original principal amount of any Underlying Inventory Security Interest.
the Mortgage Loan (k) Each Seller Report (if prepared by the Seller, or subject only to the extent that information contained therein exceptions described in paragraph (v) above). If the Mortgaged Property is supplied by a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by related Title Insurance Policy contains an endorsement insuring the Seller validity of the creation of the condominium form of ownership with respect to the Purchaser project in connection with this Agreement which such unit 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.
(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)located. The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant full force and effect and will inure to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable to Depositor upon 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 consummation of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.
(p) The sale of Transferred Receivables transactions contemplated by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, no claims have been made under such mortgagee Title Insurance Policy and will be made in good faith and without intent to hinder, delay or defraud creditors 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;
(qviii) 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 No foreclosure action is being contested in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).premises were intended;
(rix) The Seller 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 that is notsupervised 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 is not controlled by, an a “investment companyqualified mortgage” within the meaning of Section 860G of the Investment Company Act of 1940, or is exempt from all provisions of such act.Code and Treas. Reg. §1.860G-2;
(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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(vxii) Each Receivable 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, abusive and fair lending laws; and, specifically, (a) no Mortgage Loan secured by a Mortgaged Property located in New Jersey is an a “eligible assetHigh-Cost Home Loan” as defined in Rule 3a-7 promulgated under the Investment Company New Jersey Home Ownership Act of 1940effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as amended.defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-17h)
Representations and Warranties of the Seller. 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, organized and validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, the United States of America and is in good standing, compliance with the laws of each state in every jurisdiction where which any Mortgaged Property is located to the nature extent necessary to ensure the enforceability of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, each Mortgage Loan;
(ii) The Seller has the collectibility power and authority to make, execute, deliver and perform its obligations under this Agreement and each Subsequent Transfer Agreement to which it is a party and all of the Transferred Receivablestransactions contemplated under this Agreement and each such Subsequent Transfer Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and each such Subsequent Transfer Agreement;
(iii) 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;
(iiiiv) 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 Collection Agent to perform their respective obligations hereunder.
(b) The executionvalidity or enforceability of, 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 corporate 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 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 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 for the due execution, delivery and performance by the Seller of the Transaction Basic Documents to which it is a party or any other document to be delivered (C) the transactions contemplated by it thereunder except for the filing of financing statements which are referred to therein.this Agreement;
(dvi) This Agreement and each of the other Transaction Documents Subsequent Transfer Agreement to be delivered by the Seller pursuant hereto 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 (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization 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 the enforcement of creditors’ rights generally and by general principles of equity, equity (whether considered in an a proceeding or action in equity or at law or equitylaw).;
(exi) Sales made pursuant No Mortgage Loan is subject to this Agreement the Home Ownership and Equity Protection Act of 1994. Furthermore, no Mortgage Loan either currently has, or in the future will constitute a valid salehave, transfer, and assignment single premium life provisions as part of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.Loan Agreement;
(fxii) [Intentionally omitted.]Each Initial Mortgage Loan has an associated CLTV of no higher than 100%;
(gxiii) There is no proceeding pending or, to or threatened for the knowledge total or partial condemnation of the SellerMortgaged Property, threatened, action, investigation or nor is such a proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse Effect.currently occurring;
(hxiv) No proceeds The related Loan Agreement is not and has not been secured by any collateral, pledged account or other security except the lien of any Purchase the 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 documents and instruments specified to be used included therein;
(xvi) With respect to each Mortgage Loan that is not a first mortgage loan, either (i) to acquire any equity security of a class which no consent for the Mortgage Loan is registered pursuant to Section 12 required by the holder or holders of the Securities Exchange Act of 1934related prior lien, (ii) to acquire any security such consent has been obtained and is contained in any transaction which is subject to Section 13 or 14 of such Act the related Mortgage File or (iii) no consent for any other purpose that violates applicable the Mortgage Loan was required by relevant law, including Regulation G or U ;
(xvii) The Mortgaged Property is located in the state identified in the Mortgage Loan Schedule and consists of a single parcel of real property with a residential dwelling erected thereon;
(xviii) The related Mortgage contains customary and enforceable (subject to clause (x)) provisions which render the rights and remedies of the Federal Reserve Board.
holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including, (i) No transaction contemplated hereby requires compliance in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure. There is no 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 of the Seller’s knowledge, there is no default, breach, violation or 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 bulk sales act 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 law.liens or claims which have been filed for work, labor or material affecting the related Mortgaged Property which are, or may be liens prior or equal to the lien of the related Mortgage, except liens which are fully insured against by a title insurance policy referred to in clause (xxiv) below;
(jxxiii) As of the Cut-Off Date or 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;
(xxiv) A title search or other assurance of title customary in the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each Receivable characterized in any Seller Report or other written statement made by or on behalf original Mortgage was recorded, and all subsequent assignments of the Seller 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 to perfect the lien thereof (whether as Collection Agent or otherwise) as an Eligible Receivable is, as are in the process of the date of such Seller Report or other statement, an Eligible Receivable. Each Transferred Receivable, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller being recorded in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.local law);
(kxxvi) 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during transferred the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sale of Transferred Receivables by 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 Seller.Securityholders was utilized in selecting the Mortgage Loans;
(qxxviii) 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;
(ixxx) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returnsNo instrument of release or waiver has been executed in connection with the Mortgage Loans, and no Mortgagor has been released, in whole or in part, from its obligations in connection therewith;
(iiixxxi) paid 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 made adequate provision for 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 of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested by application in good faith and by proper proceedings, and 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 obligation to pay such amount is adequately reserved against in accordance with and to the extent required by generally accepted U.S. accounting principles).Rapid Amortization Period commences;
(rxxxiv) The Seller is not, and is not controlled by, an “investment company” within the meaning None of the Investment Company Act of 1940Loan Agreements that constitute or evidence the Mortgage Loans has any marks or notations indicating that they have been pledged, assigned or is exempt from all provisions of such act.otherwise conveyed to any Person other than the Purchaser;
(sxxxv) The receivables credit and collection policies and practices of the Originators 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 A are in effect as 6) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act”
(xxxvi) Reserved;
(xxxvii) As of the date Cut-Off Date, the minimum CLTV of this Agreement. Since a Mortgage Loan is ___%, the date highest CLTV of this Agreementa Mortgage Loan is ___% and the weighted average CLTV for the Mortgage Loans is approximately ___%;
(xxxviii) As of the Cut-Off Date, there 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 material changes 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 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 secured by Mortgaged Properties located in the Credit states of _______, _______, _______, _______ and Collection Policy other than in accordance with this Agreement._______, respectively;
(tA) No event Each Mortgaged Property consists of a single parcel of real property with a single family 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase pricemulti-family residence erected thereon, 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 (ii) shall not have been made for individual condominium unit 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.agricultur
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Mortgage Loan Trust, LLC)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws of Delaware, the jurisdiction named at the beginning hereof 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, unless the failure to so qualify would not 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 perform their respective obligations hereunderQualified.
(b) The execution, delivery and performance by the Seller of this Agreement, the originator Sale Agreement and the all other documents to be delivered by it hereunderhereunder or thereunder, 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 corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1i) the Seller’s organizational documents's charter or by-laws, (2ii) any law, rule or regulation applicable to the Seller, (3iii) any contractual restriction 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 upon or with respect to any of its properties (except other than in favor of the Purchaser or the Agent for the transfer benefit of the Seller’s interest in Purchaser with respect to the Transferred Purchased Receivables pursuant to this Agreementand related Purchased Assets); and no transaction contemplated hereby or by the Originator sale Agreement requires compliance with any bulk sales act or similar law. This Agreement and the Originator Sale Agreement have 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 for the due execution, delivery and performance by the Seller of this Agreement, the Transaction Documents to which it is a party Originator Sale Agreement or any other document or instrument to be delivered by it thereunder hereunder or thereunder, except for the filing of the UCC financing statements described in Schedule VI, all of which financing statements have been duly filed and are referred to thereinin full force and effect.
(d) This Agreement, the Originator Sale Agreement and each of the other Transaction Documents document or instrument to be delivered by the Seller pursuant hereto constitutes hereunder or thereunder constitute the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by their respective terms, subject to applicable bankruptcy, insolvency, reorganization moratorium, or other similar laws affecting the enforcement rights of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Equivest Finance Inc)
Representations and Warranties of the Seller. The Seller represents and warrants to the Purchaser as follows:
(a) The Seller is a corporation duly organized, organized and validly existing and in good standing under the laws of Delawarethe State of Delaware and has full corporate power, authority and legal right to enter into this Agreement and to execute and deliver the Additional Certificate pursuant hereto. (b) The Seller is duly qualified to do business, business and is in good standingstanding (or is exempt from such requirement) in any state required in order to conduct its business, in every jurisdiction where the nature of its business requires it and has obtained all necessary licenses and approvals with respect to be so qualified, unless the failure to so qualify would not 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 perform their respective obligations hereunderrequired under applicable law.
(bc) The execution, execution and delivery and performance of this Agreement by the Seller and the consummation of the transactions provided for in 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 the Seller by all necessary corporate 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 binding action 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 propertypart, 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 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 a legal, valid and binding obligation of the Seller Seller, enforceable against the Seller in accordance with its terms (terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)Debtor Relief Laws.
(e) Sales made pursuant to The execution, delivery and performance of this Agreement by the Seller and the issuance of the Additional Certificate will not (i) contravene its Certificate of Incorporation or By- Laws, (ii) violate any provision of, or require any filing, registration, consent or approval under, any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to the Seller, except for such filings, registrations, consents or approvals as have already been obtained and are in full force and effect, (iii) result in a breach of or constitute a valid saledefault or require any consent under any indenture or loan or credit agreement or any other agreement, transferlease or instrument to which the Seller is a party or by which it or its properties may be bound or affected, and assignment or (iv) result in, or require, the creation or imposition of any Lien upon or with respect to any of the Transferred Receivables to properties now owned or hereafter acquired by the Purchaser, enforceable against creditors of, Seller other than as specifically contemplated by the Pooling and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred ReceivableServicing Agreement.
(f) [Intentionally omitted.]
(g) There is no pending orThe execution, to the knowledge delivery and performance 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(l) The principal place of business and chief executive office of by 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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(m) The names and addresses of all the Lock-Box Banks, together with the account numbers issuance of the Lock-Box Accounts at such Lock-Box Banks, are specified Additional Certificate will not conflict with or violate in Exhibit B (as the same may be updated from time any material respect any Requirements of Law applicable 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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.
(qg) The Seller has (i) timely filed all federal tax returns All approvals, authorizations, consents, orders or other actions of any Person or of any governmental body or official required to be filedin connection with the execution, (ii) timely filed all other material state delivery 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. 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 performance 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions and issuance of the Initial 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 (ii) shall not Additional Certificate 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 Codeobtained. 9.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Certificate Purchase Agreement (Chemical Leaman Corp /Pa/)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(ai) The Seller is a corporation limited liability company duly organized, validly existing and in good standing under the laws of Delawarethe jurisdiction indicated at the beginning of this Agreement, has the requisite power and authority under its Constituent Documents and applicable law to own its property and assets and to carry on its business as now conducted and proposed to be conducted after the Closing Date and is duly qualified to do business, and is in good standing, in every jurisdiction where such qualification or authorization is required, except to the nature of its business requires it extent that any failure to be so qualified, unless the failure qualified or in good standing as a foreign entity could not reasonably be expected to so qualify would not have a material adverse effect on Material Adverse Effect.
(iii) The Seller has no Subsidiaries. All of the outstanding membership interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereunderare owned by Lyondell.
(b) The Seller has the power and authority under its Constituent Documents and applicable law to execute, deliver and carry out the provisions of the Transaction Documents to which it is a party, and all such actions have been duly and validly authorized by all necessary proceedings on its part under its Constituent Documents and applicable law.
(c) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents to which it is a party, 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 PurchasesPurchases and reinvestments, (i) are within the Seller’s corporate powers, (ii) have been duly authorized and delivered by all necessary corporate actionaction on its part, (iii) do not contravene (1i) violate (x) any provision of the Seller’s organizational documents, (2) Constituent Documents or any other agreement governing its organization and/or scope of power and authority or any applicable law, rule rule, regulation (including Regulation U or regulation applicable to the Seller, (3X) any contractual restriction binding on or affecting the Seller or its property or (4) any order, writ, judgment, awardinjunction, injunction decree, determination or decree award of any Governmental Authority binding on upon it or affecting any other Transaction Party, (ii) result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any indenture or any agreement or other instrument to which it is a party, or by which it or any of its properties or assets are bound, or (iii) except for the Seller or its propertyLiens created by the Transaction Documents, and (iv) do not result in or require the creation or imposition of any lien, security interest or other charge or encumbrance Lien upon or with respect to any of its properties property or assets.
(except for the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement). d) This Agreement is, and each of the other Transaction Documents to be delivered by which the Seller pursuant hereto has been duly executed is or will be a party when delivered will be, the legal, valid and delivered binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the Sellerrights of creditors generally and by general principles of equity, including implied obligations of good faith and fair dealing.
(ce) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority is or regulatory body is will be required for the due execution, delivery and performance by the Seller of the any Transaction Documents Document to which it is a party or any other document to be delivered by it thereunder transaction contemplated hereby or thereby, except for the filing filings of the 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred ReceivableArticle III.
(f) [Intentionally omittedSince the date of the Seller’s formation, there has not occurred any development or event affecting, or any change in the business, assets, results of operations, financial condition or prospects of, the Seller which has resulted or could reasonably be expected to result in a Material Adverse Effect.]
(g) There is no action, suit, investigation, litigation or proceeding at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of the Seller, threatened, action, investigation threatened against or proceeding affecting the Seller or any its business, assets or rights (i) as to which there is a reasonable possibility of its subsidiaries before any courtan adverse decision and which, governmental agency or arbitrator which may if adversely determined, could, individually or, in the aggregate, reasonably be expected to 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, Effect or (ii) to acquire any security that in any transaction which is subject to Section 13 manner draws into question the validity or 14 enforceability of such Act or (iii) for any other purpose that violates applicable law, including Regulation G or U of the Federal Reserve BoardTransaction Document.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(j) Each Receivable characterized Immediately prior to the time of the initial creation of an interest hereunder in any Seller Report or other written statement made by or on behalf of Pool Receivable, the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, as of is the date legal and beneficial owner of such Seller Report or other statementPool Receivable and Related Security and Collections with respect thereto, an Eligible Receivable. Each Transferred Receivable, together with the Related Security, is owned (immediately prior to its sale hereunder) by the Seller in each case free and clear of any Adverse Claim Lien (other than any Adverse Claim arising solely as Permitted Liens).
(ii) Upon each Purchase or reinvestment, the result of any action taken by the Purchaser). When Seller shall transfer to the Purchaser makes making such Purchase or reinvestment (and such Purchaser shall acquire) a Purchase it shall acquire valid interest to the extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and perfected first priority ownership of each Transferred Receivable and in the Related Security and Collections with respect thereto thereto, free and clear of any Adverse Claim Lien (other than any Adverse Claim arising solely as the result of any action taken by the PurchaserPermitted Liens), and no effective financing statement which ownership interest or other instrument similar in effect covering any Transferred Receivable, any security interest therein, shall be a perfected first priority ownership interest or security interest upon the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor filing of the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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 financing statements referred to in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 principles3.1(b)(xii).
(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. 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.
(uiii) With respect to each Transferred Receivabletransfer to it of any Pool Receivables, the Seller has either (i) shall have received each Transferred Receivable acquired by it as a contribution to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable Pool Receivables from the applicable an Originator in exchange for payment (made by the Seller to the applicable an Originator in accordance with the provisions of the Initial Purchase Receivables Sale Agreement) of cash, deferred purchase price, or a combination thereof in an amount which constitutes fair consideration and approximates fair market value for such Pool Receivables and in a sale the terms and conditions of which (including, without limitation, the purchase price thereof) reasonably equivalent value, and each such sale referred to in the foregoing clause approximate an arm’s-length transaction between unaffiliated parties or (ii) shall not have acquired such Pool Receivables from an Originator as a capital contribution in accordance with the provisions of the Receivables Sale Agreement. No such sale, and no such contribution, has been made for or on account of an antecedent debt owed by any Originator to the Seller and no such sale or contribution is or may be voidable or subject to avoidance under any section of the Federal U.S. Bankruptcy Code.
(vi) Each No report or document or other information furnished or to be furnished at any time by or on behalf of the Seller to the Agent or any Purchaser in connection with any Transaction Document, when taken together with all other reports, documents and information then or theretofore so furnished by or on behalf of the Seller, contained or will contain, as of the date so furnished, any untrue statement of a material fact or omitted to state, or will omit to state, as of the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(j) The jurisdiction of incorporation, organizational identification number (if any), and the address(es) of the principal place of business and chief executive office of the Seller and the office where the Seller keeps its Records concerning the Receivable Assets, are as set forth in Schedule III hereto (or, by notice to the Agent in accordance with Section 5.1(e), at such other locations in jurisdictions, within the United States, where all requested actions under Section 6.5(a) have been taken and completed).
(k) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers and owners of, the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Agent in accordance with Section 5.3(m). Except pursuant to the Lock-Box Agreements, the Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future event.
(l) Since the date of its formation, the Seller has not engaged in any activity other than as contemplated by the Transaction Documents or entered into any commitment or incurred any Indebtedness other than pursuant to, or as permitted under, the Transaction Documents.
(m) The Seller has not maintained, contributed to or incurred or assumed any obligation with respect to any Plan, Multiemployer Plan or Welfare Plan, except such obligation or contingent obligation that arises as a matter of law solely as a result of another member of the ERISA Group’s sponsorship of a Plan, Multiemployer Plan or Welfare Plan.
(n) The Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder. The Seller has not extended or modified the terms of any Pool Receivable or the Contract under which any such Pool Receivable arose, except in accordance with the Credit and Collection Policy.
(o) The Seller has filed, or caused to be filed or be included in, all tax reports and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes (i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above would not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests included in the Pool Receivables, Related Security, Collections, Restricted Accounts or proceeds thereof.
(p) The Seller is not an “eligible assetinvestment company” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended. The Seller is not subject to regulation as a “holding company” under the Public Utility Holding Company Act of 1935, as amended.
(q) Both before and after giving effect to (i) each Purchase to be made on the Closing Date or such other date as Purchases requested hereunder are made, (ii) the disbursement of the proceeds of any Capital Investment, (iii) the consummation of each other transaction contemplated by the other Transaction Documents and (iv) the payment and accrual of all transaction costs in connection with the foregoing, the Seller is Solvent.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lyondell Chemical Co)
Representations and Warranties of the Seller. The Seller hereby represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organizedformed, validly existing and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not 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 perform their respective obligations hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents to which it is a party 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 corporate 's limited liability company powers, (ii) have been duly authorized by all necessary corporate 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 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 Transferred Receivables created pursuant to this Agreement). This Agreement and each Each of the other Transaction Documents to be delivered by which the Seller pursuant hereto 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder thereunder, except for the filing of UCC financing statements which are referred to therein.
(d) This Agreement and each Each of the other Transaction Documents to be delivered by the Seller pursuant hereto which it is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales The opening pro forma balance sheet of the Seller as at December 10, 2003, utilizing outstanding Receivables as at November 30, 2003 and giving effect to the initial purchase to be made pursuant under this Agreement, a copy of which has been furnished to this Agreement will constitute a valid salethe Program Agent and each Investor Agent, transferfairly presents the financial condition of the Seller as at such date, in accordance with generally accepted accounting principles, and assignment since December10, 2003 there has been no material adverse change in the business, operations, property or financial or other condition of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller's knowledge, threatened, threatened action, investigation or proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or 40 arbitrator which may have a Material Adverse Effectmaterially adversely affect the financial condition or operations of the Seller or the ability of the Seller to perform its obligations under any Transaction Document, or which purports to affect the legality, validity or enforceability of any Transaction Document.
(hg) No proceeds of any Purchase purchase or reinvestment 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.
(ih) Immediately prior to the purchase by the applicable Investors and/or Banks, as the case may be, the Seller is the legal and beneficial owner of the Pool Receivables and Related Security which are the subject of such purchase free and clear of any Adverse Claim; upon each purchase or reinvestment, the applicable Investors or the Banks, as the case may be, (except, in the case of Receivables of *****************, the sale arrangements in Section 2.02(e) of the Originator Purchase Agreement) shall acquire a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto. No transaction contemplated hereby requires compliance effective financing statement or other instrument similar in effect covering any Contract or any Pool Receivable or the Related Security or Collections with respect thereto is on file in any bulk sales act or similar law.
(j) recording office, except those filed in favor of the Program 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 other written statement made by or on behalf of the Seller (whether as Collection Agent or otherwise) 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. Each Transferred Receivable, together with Receivable or properly included in 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security InterestNet Receivables Pool Balance.
(ki) Each Seller Report (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or an Affiliate), written information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Purchaser Program Agent, the Investor Agents, 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 (a) as otherwise disclosed to the Purchaser Program Agent, the Investor Agents, the Investors or the Banks, as the case may be, at such timetime or (b) with respect to written information, exhibits, financial statements, documents, books, records or reports furnished prior to the date of this Agreement, if such inaccuracy has been corrected before the date of this Agreement) as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact.
(lj) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records concerning the Transferred Pool Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.
(mk) The names and addresses of all the Lock-Box Banks, together with the post office boxes and account numbers of the Lock-Box Accounts of the Seller at such Lock-Box Banks, are as specified in Exhibit B (Schedule I hereto, as the same 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, except as expressly permitted pursuant . The Seller has delivered to the terms of Section 5.01(h) hereofProgram Agent a fully executed Lock-Box Agreement with respect to each Lock-Box Account.
(nl) None (i) Each Receivable is, according to the related Contract, required to be paid in full within 365 days of the original billing date therefor, (ii) neither the Parent nor any of its Subsidiaries issues commercial paper or other short-term indebtedness (having maturities not exceeding nine months) in reliance on the "current transaction" exemption contained in Section 3(a)(3) of the Securities Act of 1933, as amended, and (iii) each Receivable is an obligation representing part or all of the sales price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(m) The Seller or any Originator is not known by or uses and does not use any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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.
(qn) The Seller has (i) timely filed all federal tax returns required to be filedwas formed on December 3, (ii) timely filed all other material state and local tax returns2003, and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than Seller did not engage in any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect business activities prior 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. Since the date of this Agreement, there have been The Seller has no material changes in the Credit and Collection Policy other than in accordance with this AgreementSubsidiaries.
(ti) No event The fair value of the property 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 will, incur debts or circumstance has occurred since liabilities beyond the date of this Agreement that has Seller's abilities to pay such debts and liabilities as they mature and (iv) the Seller is not engaged in a Material Adverse Effectbusiness 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.
(up) With respect to each Transferred Pool Receivable, the Seller (i) shall have received each Transferred such Pool Receivable acquired by it as a contribution to the capital of the Seller by the applicable Originator Parent or (ii) shall have purchased such Transferred Pool Receivable from the applicable Originator Originators in exchange for payment (made by the Seller to the applicable such Originator in accordance with the provisions of the Initial Originator Purchase Agreement) of cash, deferred purchase priceDeferred Purchase Price, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value, and each . Each such sale referred to in the foregoing 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Company as follows:
(a) The Seller has been duly formed and is existing as a corporation duly organized, validly existing and limited liability company in good standing under the laws of Delawarethe State of Delaware and has the power, authority and capacity to execute and deliver this Agreement, to perform the Seller’s obligations hereunder, and is duly qualified to consummate the transactions contemplated hereby.
(b) The execution and delivery of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby: (i) do businessnot require the consent, approval, authorization, order, registration or qualification of, or (except for filings pursuant to Section 16 or Regulation 13D under the Exchange Act) filing by the Seller with, any governmental authority or regulatory authority, including any stock exchange or self-regulatory organization, or court, or body or arbitrator having jurisdiction over the Seller and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify (ii) except as would not 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 to consummate the transactions contemplated by this Agreement, do not and will not constitute or result in a breach, violation or default, or cause the Collection Agent to perform their respective obligations hereunder.
(b) The execution, delivery and performance by acceleration or termination of any obligation or right of the Seller of this Agreement and or any other party thereto, under (A) any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, to which 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 PurchasesSeller is a party, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1B) the Seller’s organizational documents, documents or (2C) any statute, law, rule ordinance, decree, order, injunction, rule, directive, judgment or regulation applicable to the Seller, (3) any contractual restriction 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 liencourt, security interest administrative or other charge regulatory body, including any stock exchange or encumbrance upon self-regulatory organization, governmental authority, arbitrator, mediator or with respect to any of its properties similar body.
(except for the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement). c) 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 bySeller and, and no notice to or filing with, any governmental authority or regulatory body is required for assuming the due execution, execution and delivery and performance of this Agreement by the Seller of the Transaction Documents to which it is Company, constitutes a party or any other document to be delivered by it thereunder 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 Seller, enforceable against the Seller in accordance with its terms (terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting the enforcement of creditors’ rights generally and general principles of equity. The Seller has duly taken all necessary limited liability company action to authorize the execution, whether considered delivery and performance of this Agreement and the transactions contemplated hereby and all consents, approvals, authorizations and orders required for the Seller’s execution and delivery of this Agreement and performance of the transactions contemplated hereby have been obtained and are in an action at law full force and effect.
(d) The Seller is the sole record owner of the Shares. The Seller has good, valid and marketable title to the Shares free and clear of any lien, encumbrance, pledge, charge, security interest, mortgage, title retention agreement, option, equity or equityother adverse claim or rights of any third party whatsoever (except for restrictions pursuant to applicable federal and state securities laws), and has not, in whole or in part, (i) assigned, transferred, hypothecated, pledged or otherwise disposed of the Shares or its ownership or other rights in such Shares or (ii) given any person or entity any transfer order, power of attorney or other authority of any nature whatsoever with respect to such Shares. Following the Repurchase Transaction, and against payment made pursuant to this Agreement, good, valid and marketable title to the Shares, free and clear of any lien, encumbrance, pledge, charge, security interest, mortgage, title retention agreement, option, equity or other adverse claim, will pass to the Company.
(e) Sales made pursuant There is no action, suit, proceeding or investigation pending or, to the Seller’s knowledge, currently threatened that questions the validity of this Agreement, or the right of the Seller to enter into this Agreement will constitute a valid saleor to consummate the transactions contemplated by this Agreement. There are presently no outstanding judgments, transfer, and assignment decrees or orders of any court or any governmental or administrative agency against the Seller which questions the validity of this Agreement or the right of the Transferred Receivables Seller to consummate the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivabletransactions contemplated by this Agreement.
(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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during incurred any obligation or liability, contingent or otherwise, for any brokerage or finder’s fee, agent’s commission or other similar payments to any third party in connection with the two years prior to the date of transactions contemplated by this Agreement.
(mg) The names Seller has been furnished with such documents, materials and addresses of all information as Seller deems necessary or appropriate for evaluating the Lock-Box Banks, together with the account numbers financial condition of the Lock-Box Accounts at such Lock-Box BanksCompany, are specified in Exhibit B (including information regarding the Repurchase Transaction, and has had the opportunity to ask questions of, and receive answers from, the officers of the Company, concerning the Company and the terms and conditions of the Repurchase Transaction. The Seller acknowledges and explicitly agrees that although it has received certain information from the Company as to its financial condition and other matters and the same Repurchase Transaction, the Seller understands that the Shares may be updated from time to time pursuant to Section 5.01(g)). The Lock-Box Accounts are worth more than 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required Purchase Price to be bound by a confidentiality agreement reasonably acceptable paid 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Stock Repurchase Agreement (Arlon Valencia Holdings LLC)
Representations and Warranties of the Seller. The Seller represents hereby makes the following representations and warrants warranties to the Buyer and EIAC as follows:of the date hereof and as of the Closing Date (unless otherwise indicated), provided that the Seller shall have no liability whatsoever in respect of any Claims or Losses if and to the extent that any fact, matter or circumstance which causes any of the following representations and warranties to be breached or which might result in any Claims or Losses has been disclosed in this Agreement or in the Disclosure Letter, assuming compliance with Section (4)(b)(x):
(a) it is duly organized and existing under the laws of the jurisdiction of its organization with full power and authority to execute and deliver this Agreement and to perform all of the duties and obligations to be performed by it under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered by it, and constitutes its valid, legal and binding obligation enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws of general application relating to or affecting the enforcement of creditors’ rights in general or by general principles of equity whether considered in a proceeding at law or equity;
(c) its execution and delivery of, the performance and incurrence by it of its obligations and liabilities under, and the consummation by it of the other transactions contemplated by, this Agreement do not and will not:
(i) violate any provision of its organizational documents;
(ii) violate any applicable law, rule or regulation of any Governmental Authority having jurisdiction over the Seller, except as would not reasonably be expected, based on customary practice in the maritime shipping industry, individually or in the aggregate, to materially impair the Seller’s ability to consummate the transactions contemplated hereby or otherwise result in a Material Adverse Effect;
(iii) violate any order, writ, injunction or decree of any Governmental Authority having jurisdiction over the Seller, except as would not reasonably be expected, based on customary practice in the maritime shipping industry, individually or in the aggregate, to materially impair the Seller’s ability to consummate the transactions contemplated hereby or otherwise result in a Material Adverse Effect; or
(iv) other than as set forth in Schedule 11(c)(iv) result in a breach of, constitute a default under, require any consent under, or result in the acceleration or required prepayment of any indebtedness pursuant to the terms of, any agreement or instrument to which it or any SPV is a party or by which it or any SPV is bound or to which it or any SPV is subject, or result in the creation or imposition of any Lien upon any property of it or any SPV (other than the Financing or Carry-Over Financing) pursuant to the terms of any such agreement or instrument, except as would not reasonably be expected, based on customary practice in the maritime shipping industry, individually or in the aggregate, to materially impair the Seller’s ability to consummate the transactions contemplated hereby or otherwise result in a Material Adverse Effect;
(d) Schedule 11(d) sets forth the Seller’s and JVCo’s record and beneficial ownership of the SPV Shares. The Seller and JVCo have good and valid title to the SPV Shares and, upon the transfer of the SPV Shares in accordance with this Agreement, the Buyer will receive good and valid title to all of the issued and outstanding SPV Shares, free and clear of all Liens except for any Liens in respect of the Carry-Over Financing;
(e) the SPV Shares constitute the whole of the authorized and issued share capital of each SPV, and as of the date hereof are, and as of the Closing Date will be, duly authorized, validly issued, fully paid and nonassessable. There are no options, warrants, rights, calls, commitments, conversion rights, rights of exchange or other agreements of any character, contingent or otherwise, providing for the purchase or sale of any of the SPV Shares by any person other than the Buyer pursuant hereto, nor any arrangements that require or permit the SPV Shares to be voted by or at the discretion of anyone other than the Seller except following an event of default in respect of the Carry-Over Financing;
(f) each SPV wholly owns the Vessel indicated on Schedule 11(f), free and clear of any Liens, other than Permitted Liens;
(g) except as set forth in Schedule 11(g) (which, with respect to each Action disclosed therein, sets forth the parties, nature of the proceeding, date and method commenced, amount of damages or other relief sought and, if applicable, paid or granted), to the Knowledge of the Seller after due inquiry, there are no Actions as of the date hereof by or against any SPV (or by or against the Seller or any Affiliate thereof and relating to the Business, an SPV or any Vessel), pending before any Governmental Authority (or, to the Knowledge of the Seller after due inquiry, threatened to be brought by or before any Governmental Authority);
(h) none of the SPVs are conducting their Business in violation of any Laws, except such violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect;
(i) in connection with Taxes of the SPVs:
(i) all Tax Returns required to be filed with respect to each SPV have been duly and timely filed and, to the Knowledge of the Seller, are true, correct and complete in all material respects;
(ii) all Taxes required to be shown on such Tax Returns or otherwise due and payable on or prior to the Closing Date have been duly and timely paid, and all Taxes required to be deducted and/or withheld by an SPV have been so deducted and/or withheld and timely paid and reported to the appropriate Governmental Authority;
(iii) no adjustment relating to any such Tax Return has been proposed formally or informally by any Governmental Authority and, to the Knowledge of the Seller, no basis exists for any such adjustment;
(iv) there are no pending or, to the Knowledge of the Seller, threatened Tax Matters for the assessment or collection of Taxes against any SPV or any company that was included in the filing of a return with an SPV on a consolidated, combined or unitary basis; and
(v) neither the Seller nor any SPV has received any notice of the existence of any Tax liens other than Permitted Liens on any assets of any SPV;
(j) the Seller has delivered to EIAC correct and complete copies of all Tax Returns filed with respect to each SPV for any taxable period ending after 2001, and copies of all correspondence to or from any Governmental Authority with respect thereto or any Tax Matter relating thereto, including any examination reports and statements of deficiencies assessed against or agreed to by any SPV. Any tax sharing or allocation agreement involving any SPV shall be terminated as of the Closing on terms that require no further payments by any party. Seller has delivered to EIAC a true and complete copy of each such agreement as listed on Schedule 11(j);
(k) each of the SPVs is a corporation duly organized, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every its jurisdiction where of formation.
(l) the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on Accounts:
(i) have been prepared in accordance with the interests books of account and other financial records of the Purchaser hereunderrelevant SPV;
(ii) present fairly the consolidated financial condition and results of operations of the relevant SPV as of the dates thereof or for the periods covered thereby;
(iii) were prepared on a basis consistent with past practices and have been (or will be as required by this Agreement) converted to GAAP; and
(iv) include all adjustments (consisting only of normal recurring accruals) that are necessary for a fair presentation of the consolidated financial condition of the relevant SPV and the results of the operations of the relevant SPV as of the dates thereof or for the periods covered thereby;
(m) the books of account and other financial records of each SPV provided in accordance with the terms of this Agreement reflect all items of income and expense and all assets and liabilities required to be reflected therein in accordance with past practices, (ii) the collectibility of the Transferred Receivablesare in all material respects complete and correct, and do not contain or reflect any material inaccuracies or discrepancies and (iii) have been maintained in accordance with good business and accounting practices;
(n) to the ability Knowledge of the Seller Seller, there are no Liabilities of any SPV, other than Liabilities reflected or reserved against in the Collection Agent to perform their respective obligations hereunder.Accounts;
(bo) The execution, delivery and performance by to the Seller Knowledge of this Agreement and the other documents to be delivered by it hereunder, including the Seller’s sale , there are no oral or informal arrangements or agreements that would be binding on any SPV or otherwise relate to any Vessel;
(p) Schedule 11(p) sets forth the following contracts and agreements of Receivables hereunder each SPV currently in effect (such contracts and the Seller’s use of the proceeds of Purchases, agreements being “Material Contracts”):
(i) are within each contract and agreement involving the Seller’s corporate powerspurchase of spare parts, other materials, or for the furnishing of services to a SPV or a Vessel (including repair services) or otherwise related to the Business under the terms of which such SPV: (A) is likely to pay or otherwise give consideration of more than $500,000 in the aggregate during the calendar year ended December 31, 2007, (B) is likely to pay or otherwise give consideration of more than $1,000,000 in the aggregate over the remaining term of such contract or (C) cannot be cancelled by such SPV without penalty or further payment and without more than 180 days’ notice;
(ii) have been duly authorized by all necessary corporate actionship broker, market research, marketing consulting and advertising contracts and agreements to which any SPV is a party under the terms of which such SPV: (A) is likely to pay or otherwise give consideration of more than $500,000 in the aggregate during the calendar year ended December 31, 2007 or (B) is likely to pay or otherwise give consideration of more than $1,000,000 in the aggregate over the remaining term of such contract;
(iii) do all technical and commercial management contracts (or other contracts with independent contractors or consultants), to which any SPV is a party and which are not contravene cancelable without penalty or further payment and without more than 180 days’ notice;
(1iv) all contracts and agreements pursuant to which any SPV has incurred Indebtedness;
(v) all contracts and agreements with any Governmental Authority to which any SPV is a party;
(vi) all contracts and agreements for the Seller’s organizational documentsemployment of a Vessel with a duration in excess of 12 months;
(vii) all contracts and agreements, whether or not made in the ordinary course of business, which are material to the business as conducted prior to the Closing Date; and
(2viii) any lawall contracts pertaining to insurance for the Vessels;
(q) except as set forth on Schedule 11(q), rule or regulation applicable with respect to all Material Contracts:
(i) none of the SPVs or, to the Knowledge of the Seller, any other party to any such Material Contract is in material breach thereof or default thereunder;
(3ii) to the Knowledge of the Seller, there does not exist under any contractual restriction binding on Material Contract any event which, with the giving of notice or affecting the Seller lapse of time, would constitute such a material breach or its property or default by an SPV or, to the Knowledge of the Seller, any other party thereto;
(4iii) any ordereach Material Contract is a valid and enforceable obligation of the SPV party thereto and with respect to such SPV party is in full force and effect and to the Knowledge of the Seller, 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 other party thereto is in full force and effect (except for to the transfer of extent that the Seller’s interest in the 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium or similar laws from time to time in effect affecting generally the enforcement of creditors’ rights generally and remedies, and (B) general principles of equity), whether considered in an action at law each case except for such breaches, defaults, events and other circumstances as to which requisite waivers or equity).consents have been obtained, or which would not, individually or in the aggregate, be material to the SPVs, individually, and taken as a whole; and
(eiv) Sales made pursuant no consent is required by any Person that is a party to this Agreement will constitute a valid saleMaterial Contract to consummate the Sale and Purchase, transfer, and assignment except with respect to the Carry-Over Financing;
(r) since the date of the Transferred Receivables most recent balance sheet included in the Audited Financial Statements, except as disclosed in Schedule 11(r), the business of the SPVs has been conducted in the ordinary course and consistent with past practice. As amplification and not limitation of the foregoing, except as so disclosed, since such date, no SPV has:
(i) permitted or allowed any of the assets or properties (whether tangible or intangible) of such SPV to be subjected to any Lien, other than Permitted Liens;
(ii) except in the ordinary course of business consistent with past practice, discharged or otherwise obtained the release of any Lien or paid or otherwise discharged any liability, other than current liabilities reflected in the Accounts and current liabilities incurred in the ordinary course of business consistent with past practice;
(iii) made any loan to, guaranteed any Indebtedness of or otherwise incurred any Indebtedness on behalf of any Person;
(iv) failed to pay any creditor any amount owed to such creditor;
(v) except for the Charters and insurance policies relating to the PurchaserVessels, enforceable against creditors entered into any contract or agreement that limits or purports to limit the ability of any SPV to compete in any line of business or with any Person in any geographic area or during any period of time;
(vi) made any material changes in the operating practices of such SPV that would be inconsistent with past practice, including, without limitation, practices and policies relating to marketing, selling and pricing;
(vii) merged with, entered into a consolidation with or acquired an interest of 30% or more in any Person or acquired 50% or more of the assets or business of any Person or any division or line of business thereof, or otherwise acquired any material assets other than in the ordinary course of business consistent with past practice;
(viii) made any capital expenditure or commitment for any capital expenditure in excess of $1,000,000 individually or $3,000,000 in the aggregate other than in the ordinary course of business;
(ix) issued any sales orders or otherwise agreed to make any purchases involving exchanges in value in excess of $1,000,000 individually or $3,000,000 in the aggregate other than in the ordinary course of business;
(x) sold, transferred, leased, subleased, licensed or otherwise disposed of any properties or assets, real, personal or mixed (including, without limitation, leasehold interests and intangible assets) in value in excess of $1,000,000 individually or $3,000,000 in the aggregate, other than in the ordinary course of business consistent with past practice;
(xi) issued or sold any capital stock, notes, bonds or other securities, or any option, warrant or other right to acquire the same, of, and purchasers fromor any other interest in, SPVs other than to the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.;
(fxii) [Intentionally omitted.]
(g) There is no pending orentered into any agreement, to the knowledge of the Seller, threatened, action, investigation arrangement or proceeding affecting the Seller or transaction with any of its subsidiaries before directors, officers, employees or shareholders (or with any courtrelative, governmental agency beneficiary, spouse or arbitrator which may Affiliate of such person), other than shareholder loans reflected in (jj) below;
(xiii) granted any increase, or announced any increase, in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by such SPV to any of its Employees;
(xiv) amended, terminated, cancelled, waived or compromised any material claims or rights of such SPV, except such claims or rights as would not, individually or in the aggregate, be expected to have a Material Adverse Effect.;
(hxv) No proceeds of any Purchase will be used (i) failed to acquire any equity security of a class which is registered pursuant to Section 12 of maintain 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller Vessels in accordance with the Initial Purchase Agreementclass requirements and past practices;
(xvi) allowed any Permit that was issued or relates to such SPV or its Vessel to lapse or terminate except such Permits as would not, in favor of Purchaser in accordance with this Agreement, individually 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 warranty by the Seller as aggregate, be reasonably expected to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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., or failed to renew any such Permit or any insurance policy that is scheduled to terminate or expire within 45 calendar days prior to or after the Closing Date;
(uxvii) With respect to each Transferred Receivableincurred any Indebtedness, the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution to the capital in excess of the Seller by the applicable Originator $1,000,000 individually or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 $3,000,000 in the foregoing clause (ii) shall not have been made for or on account aggregate, other than in the ordinary course 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.busi
Appears in 1 contract
Sources: Share Purchase Agreement (Energy Infrastructure Acquisition Corp.)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and is duly qualified to do business, enter into and is in good standing, in every jurisdiction where the nature of perform its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, obligations under this Agreement;
(ii) the collectibility execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; 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 certificate of incorporation or bylaws of the Seller;
(iii) the ability of the Seller or the Collection Agent to 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 sale of Receivables hereunder and the Seller’s use consummation of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(ev) Sales made pursuant to this Agreement will constitute a valid salethere are no actions, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) The representations and warranties with respect 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 Mortgage Loans made by or on behalf of each Transferor to the Seller (whether as Collection Agent or otherwise) as an Eligible Receivable is, 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 Report cure such breach or effect such other statementremedy 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 misrepresentation of a material fact or fraud in respect of the origination, modification or amendment 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 March 2000 payment due date. In addition, as of the Cut-off Date, no more than 0.98% 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 0.27% 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). As of the Closing Date, no more than 2.63% of the Mortgage Loans have failed to pay principal and interest on the April 1, 2000 due date.
(iii) Each Mortgage Loan, as of the Closing Date, is either a fixed rate or an Eligible Receivableadjustable 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 Transferred ReceivableMortgage 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, together however, that certain fixed rate Mortgage Loans constituting approximately 1.53% 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 Related Security15th year. No more than 0.09% of the Mortgages transferred to the Trustee are second liens on the Mortgaged Property.
(iv) No more than 0.07%, is owned 2.05% and 27.46% of the Mortgage Loans, based on the aggregate Cut-Off Date Balance of the Mortgage Loans, had combined 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%;
(immediately prior to its sale hereunderv) by the Seller free and clear Notwithstanding clause (xvi) of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaserthis Section 1.04(c). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of , each Transferred Receivable Mortgage Loan was originated, 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)applicable seller credit grade was applied, and no effective financing 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 the Seller substantially in accordance with the Initial Purchase Agreementrelated Transferor's underwriting criteria attached hereto as Exhibit A;
(vi) No more than 1.67% of the Mortgage Loans are secured by manufactured housing and no 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 restriction, 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 favor of Purchaser in accordance with this Agreement, or the appraisal made 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 warranty by the Seller as to the priority, as against any other secured creditors origination of the relevant Obligorrelated mortgage loan, (C) other matters to which like properties are commonly subject which do not materially interfere with the benefits of any Underlying Inventory Security Interestthe 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.
(kviii) There is no delinquent tax or 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 Seller Report 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 such laws;
(if prepared by xi) None of the SellerMortgage 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, or flood insurance in the amount described in the related Reconstituted Servicing Agreement (and to the extent that information contained therein required by such agreement) covers the related Mortgaged Property (either by coverage under the federal flood insurance program or 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 supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time valid and remains in full force and effect;
(xiv) No selection procedure reasonably believed by the Seller to be adverse to the Purchaser interests of the Certificateholders or the Guarantor, was used in connection selecting the Mortgage Loans for inclusion in the Trust Fund; provided, however, that the Mortgage Loans were selected by the Seller from its portfolio of mortgage loans originated in accordance with this Agreement the related Transferor's underwriting criteria attached hereto as Exhibit A.
(xv) 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 or will be accurate true and correct in all material respects as of its 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 related Mortgagor and is enforceable by the Trustee or (except as otherwise disclosed any co-trustee appointed pursuant to the Purchaser Trust Agreement against the Mortgagor in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by law, and all parties to each Mortgage Loan and 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;
(xix) All individual insurance policies contain a standard mortgagee clause naming the related Servicer, its successors and assigns, as mortgagee. All premiums thereon have been paid. Each Mortgage obligates the Mortgagor thereunder to maintain all such insurance at such time) as the Mortgagor's cost and expense, and upon the Mortgagor's failure to do so, authorizes the holder of the date so furnished.Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor;
(lxx) The principal place Any advances made after the date of business and chief executive office origination 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). The Seller has not changed its name during the two years a Mortgage Loan but prior to the date Cut-Off Date have been consolidated with the outstanding principal amount secured by the related Mortgage, and the secured principal amount, as consolidated, bears a single interest rate and single repayment term reflected on the Mortgage Loan Schedule. The consolidated principal amount does not exceed the original principal amount of this Agreement.the related Mortgage Loan;
(mxxi) The names and addresses of all the Lock-Box Banks, together There are no defaults in complying 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(hthe Mortgage, and either (1) hereof.any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges or ground rents which previously became due and owing have been paid, or (2) an escrow of 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 nature of escrow payments, 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;
(nxxii) None 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 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 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 any Originator is known other party to make payments in addition to those made by or uses any registered tradename or doing-business-as name.the Mortgagor;
(oxxv) With respect to any programs used 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 servicing case of a 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 Receivables, no sublicensing agreements are necessary in connection related Mortgagor which would materially interfere with the designation of right to sell the Mortgaged Property at a new Collection Agent pursuant trustee's sale or the right to Section 6.01 so that such new Collection Agent shall have foreclose the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be required to be bound by a confidentiality agreement reasonably acceptable Mortgage subject to the applicable Originator)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, except for those programs licensed from Persons which are not affiliated with or trustee's sale of, the applicable Originator which by Mortgaged Property pursuant to the express terms of such license either (i) require proper procedures, the consent holder of the licensor for any sublicensing thereof or (ii) prohibit any such sublicensing.Mortgage Loan will be able to deliver good and merchantable title to the property;
(pxxvii) All amounts received after the Cut-Off Date with respect to the Mortgage Loans to which the Seller is not entitled will be deposited into the Collection Account within one Business Day after the Closing Date;
(xxviii) The sale of Transferred Receivables by Seller has not transferred the Seller Mortgage Loans to the Purchaser pursuant to this AgreementDepositor, and all other transactions between the Seller and Depositor has not transferred the PurchaserMortgage Loans to the Trust Fund, have been and will be made in good faith and without with any 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 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 wherein the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which Mortgaged Property 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 1940located, or is exempt from all provisions of (B) qualified to do business in 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. Since the date of this Agreementstate, 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 the applicable Originator or (iiC) shall have purchased federal savings and loan associations or national banks having principal offices in such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial Purchase Agreement) of cash, deferred purchase pricestate, or a combination thereof (D) not doing business in an amount such state so as to require qualification or licensing, or (E) not otherwise required or licensed in such state. To the best of Seller's knowledge, all parties which constitutes fair consideration and reasonably equivalent value, and each such sale referred to in the foregoing clause (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.have
Appears in 1 contract
Representations and Warranties of the Seller. The Seller hereby -------------------------------------------- represents and warrants to the Purchaser, as of the date of this Agreement or as of such other date as is specifically provided herein, as follows:
(a) The the Seller acquired the Initial Investments in the ordinary course of its business, in good faith, for value and without notice of any claim against or claim to any of the Initial Investments on the part of any person;
(b) the Seller does not have any actual or constructive knowledge or notice of any interest in the Initial Investments that upon sale to the Purchaser and transfer in accordance herewith will be contrary to the interest of the Purchaser;
(c) the Seller is a corporation duly organized, organized and validly existing and in good standing under the laws of Delawarethe United States and has the full power, authority and legal right to transfer and convey the Initial Investments to the Purchaser and has the full power, authority (corporate and other) and legal right to execute and deliver, engage in the transactions contemplated by, and is duly qualified to do businessperform and observe the terms and conditions of, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on this Agreement;
(id) 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 perform their respective obligations hereunder.
(b) The execution, execution and 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) legal power of and have been duly authorized by all necessary corporate action, (iii) do not contravene (1) action on the part of the Seller’s organizational documents; neither the execution and delivery of this Agreement by the Seller, nor the consummation by the Seller of the transactions contemplated hereby, nor compliance by the Seller with the provisions hereof, will (2i) conflict with or result in a breach of, or constitute a default under, any of the provisions of the charter or bylaws of, or any law, governmental rule or regulation applicable to the Sellerregulation, (3) or any contractual restriction judgment, decree or order binding on or affecting on, the Seller or its property properties, or any of the provisions of any indenture, mortgage, deed of trust, contract or other instrument to which it is a party or by which it is bound, or (4ii) 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 Transferred Receivables pursuant to the terms of any such indenture, mortgage, deed of trust, contract or other instrument;
(e) 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 and constitutes a legal, valid and binding agreement of the Seller., enforceable in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency or other similar laws affecting creditors' rights generally from time to time in effect, and to general principles of equity;
(cf) No no consent, approval, authorization or approval order of or other action by, and no notice to registration or filing with, or notice to, any governmental authority or regulatory body court is required for the due execution, delivery and performance of or compliance by the Seller with this Agreement or the consummation by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]transaction contemplated hereby;
(g) There no certificate of an officer furnished pursuant hereto in writing to the Purchaser or the Trustee by the Seller contains any untrue statement of a material fact, or omits a material fact necessary to make the certificate not misleading;
(h) the Seller has not dealt with any broker, investment banker, or agent or other person that may be entitled to any commission or compensation in connection with the sale of the Initial Investments to the Purchaser;
(i) there is no litigation pending or, to the knowledge Seller's knowledge, threatened against the Seller, which would reasonably be expected to affect adversely the transfer of the Initial Investments or the execution, delivery, performance or enforceability of this Agreement;
(j) no default exists on the part of the Seller, threatenedand no event has occurred which, actionwith notice, investigation lapse of time or proceeding affecting both, would constitute a default on 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 part of the Seller in the due performance and observance of any term, covenant or condition of any agreement to which the Seller is a party or by which it is bound, which default would have a have a materially adverse effect on the Seller's performance of this Agreement;
(whether as Collection Agent or otherwisek) as an Eligible Receivable is, as the transfer of the date Initial Investments to the Purchaser will be classified as a sale under generally accepted accounting principles on the books and records of such the Seller;
(l) immediately prior to the sale of the Initial Investments to the Purchaser, the Seller Report will be the sole owner of, and will have good and marketable title to, the Initial Investments, subject to no prior lien, mortgage, security interest, pledge, charge or other statementencumbrance or any such encumbrance will be discharged, an Eligible Receivable. Each Transferred Receivableand on the Closing Date, the Seller shall duly and validly endorse the Initial Investments as described in Section 3 hereof and deliver the Initial Investments as described in Section 3 hereof, together with any other documents or certificates as may be required by this Agreement. Following the Related Securitysale of the Initial Investments to the Purchaser, is owned (immediately prior to its sale hereunder) by the Seller Purchaser will own such Initial Investments 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 Transferred 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)prior lien, and no effective financing statement mortgage, security interest, pledge, charge or other instrument similar in effect covering any Transferred Receivableencumbrance;
(m) the transfer, 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 assignment and conveyance of the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty Investments by the Seller as pursuant to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 not subject to bulk transfer laws or will be accurate any similar statutory provisions in effect in any applicable jurisdiction;
(n) the information set forth in Schedule 1 hereto is true and correct ---------- in all material respects as of its date or the Information Date;
(except as otherwise disclosed o) all conditions precedent and any restrictions upon the transfer of the Initial Investments provided for in the Underlying Agreements have been satisfied and the transfer of the Initial Investments to the Purchaser at such time) as will be complete upon the execution and delivery of this Agreement by the parties hereto (provided that transfer of registered ownership will only be complete after the Underlying Trustees have issued new certificates, representing the Initial Investments, registered in the name of the date so furnished.Purchaser);
(lp) The the Seller intends to relinquish all ownership rights in the Initial Investments sold pursuant to this Agreement; after the Closing Date, the Seller will have no right to the Initial Investments, and the Seller will have no right or obligation to repurchase or substitute any Initial Investments;
(q) the Seller's 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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(m) The names and addresses of all the Lock-Box BanksLos Angeles, 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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).California; and
(r) The 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 a "benefit plan investor" described in effect as of the date of this Agreement. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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 the Department of Labor Regulations set forth in 29 C.F.R. section of the Federal Bankruptcy Code2510.3- 101.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Initial Investments Sale Agreement (Imperial Credit Commercial Mortgage Investment Corp)
Representations and Warranties of the Seller. 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, validly existing and in good standing under the laws of Delawaregoverning its creation and existence and has full corporate power and authority to own its property, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of carry on its business requires it as presently conducted and to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser hereunder, enter into and perform its obligations under this Agreement;
(ii) The execution and delivery by the collectibility Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Transferred ReceivablesSeller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or (iii) constitute a default under, any of the ability provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the Collection Agent to perform their respective obligations 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 corporate powers, (ii) have been duly authorized by all necessary corporate 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 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 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 bySeller and, assuming due authorization, execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is Depositor, constitutes a party or any other document to be delivered by it thereunder 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 it in accordance with its terms (except as such enforceability may be limited by subject to (A) applicable bankruptcy, insolvency, reorganization or bankruptcy and insolvency laws and other similar laws affecting the enforcement of creditors’ the rights of creditors generally and (B) general principles of equity, equity regardless of whether such enforcement is considered in an action a proceeding in equity or at law or equity).law; and
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(gv) There is are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened, action, investigation threatened or proceeding likely to be asserted against or affecting the Seller Seller, before or any of its subsidiaries before by any court, administrative agency, arbitrator or governmental agency body (A) with respect to any of the transactions contemplated by this Agreement or arbitrator (B) with respect to any other matter which may have a Material Adverse Effectin 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.
(hb) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 The representations and warranties of the Securities Exchange Act of 1934, (ii) Transferor with respect to acquire any security the Mortgage Loans contained 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 Transfer Agreement were 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 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 Report under this Agreement, the sole rights or other statement, an Eligible Receivable. Each Transferred Receivable, together remedies of the Depositor with the Related Security, is owned (immediately prior respect to its sale hereunder) a breach by the Seller free of such representation and clear of any Adverse Claim warranty (other than any Adverse Claim arising solely as the result of any action taken a breach by the PurchaserSeller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be first, the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it and, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor may seek to enforce any rights against the Seller under this Agreement. When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 The representations made by the Purchaser), Seller pursuant to Sections 1.04(b)(vii) and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, 1.04(b)(viii) shall be direct obligations of the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in accordance with this Section 1.04(b) (other than the Initial Purchase Agreementrepresentations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, in favor of Purchaser in accordance with this Agreement, conditions or in connection with any Adverse Claim arising solely as the result events that do not constitute a breach of any action taken representation or warranty made by the PurchaserTransferor in the Transfer Agreement or Bring Down Letter. Nothing in this Section 4.01(j) The Seller shall constitute 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 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 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 February 16, 2005:
(i) The information set forth with respect to the priority, as against any other secured creditors Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the relevant ObligorMortgage Loans, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by and the Seller, or information with respect to each Mortgage Loan on the extent that information contained therein Mortgage Loan Schedule 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 true and correct in all material respects as of its at the date or (except as otherwise disclosed to the Purchaser at dates respecting which such time) as of the date so furnished.information is given;
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 As of the Seller.Closing Date, no Mortgage Loan is in foreclosure;
(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 As of the payment of all taxesClosing Date, assessments and other governmental charges (other than any tax, assessment or governmental charge which each Mortgage Loan 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” a "qualified mortgage" 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 Section 860G of the Originators attached hereto Code (as Exhibit A are in effect as of the date of this Agreement. Since the date of this Agreement, there have been no material changes in the Credit and Collection Policy other than in accordance with this Agreementdetermined without regard to Treas.
(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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors, Inc. Ownit 2005-1)
Representations and Warranties of the Seller. The Seller hereby represents and warrants as follows:
(a) The Seller is a corporation limited liability company duly organizedformed, validly existing and in good standing under the laws of Delaware, 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, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser Investors hereunder, (ii) the collectibility of the Transferred ReceivablesReceivables Pool, or (iii) the ability of the Seller or the Collection Agent to perform their respective its obligations hereunder.
(b) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents to which it is a party 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 Purchasespurchases and reinvestments, (i) are within the Seller’s corporate limited liability company powers, (ii) have been duly authorized by all necessary corporate limited liability company action, (iii) do not contravene (1) the Seller’s organizational charter or by-laws or equivalent documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction 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 Transferred Receivables created pursuant to this Agreement). This Agreement and each 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder thereunder, except for the filing of UCC financing statements which are referred to therein.
(d) This Agreement and each 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(e) Sales The opening pro forma balance sheet of the Seller as at December 18, 2003, giving effect to the initial purchase to be made pursuant under this Agreement, a copy of which shall be furnished to the Operating Agent within 20 days after the date of this Agreement will constitute a valid saleAgreement, transferfairly presents the pro forma financial condition of the Seller as at such date, in accordance with U.S. generally accepted accounting principles, and assignment since December 18, 2003 there has been no material adverse change in the business, operations, property or financial or other condition of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge of the Seller, threatened, or 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 Effectmaterially adversely affect the financial condition or operations of the Seller or the ability of the Seller to perform its obligations under the Transaction Documents.
(hg) No proceeds of any Purchase purchase or reinvestment 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.
(ih) Immediately prior to the purchase by the Investor, the Seller is the legal and beneficial owner of the Pool Receivables, free and clear of any Adverse Claim other than Permitted Liens; upon each purchase or reinvestment, the Investors shall acquire a valid and perfected first priority undivided percentage ownership or security interest to the extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and Collections with respect thereto. No transaction contemplated hereby requires compliance effective financing statement or other instrument similar in effect covering any Pool Receivable, any Contract related thereto or Collections with respect thereto is on file in any bulk sales act or similar law.
(j) recording office, except those filed in favor of the Operating 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 other written statement made by or on behalf of the Seller (whether as Collection Agent or otherwise) 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 ReceivableReceivable or properly included in the Net Receivables Pool Balance. Each Transferred Receivable, together with The Seller has not granted the Related Security, is owned (immediately prior right to its sale hereunder) by the Seller free and clear of any Adverse Claim (Person other than the Operating Agent to take dominion and/or control over any Adverse Claim arising solely as Deposit Account at a future time or upon the result occurrence of any action taken by the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interestfuture event.
(ki) Each Seller Report (if prepared by the SellerSeller or one of its Affiliates, or to the extent that information contained therein is supplied by the SellerSeller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Purchaser Operating Agent or the Investors 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 Operating Agent or Investors, as the case may be, at such time) as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact.
(lj) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records concerning the Transferred Pool Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller has not changed its name during the two years prior to the date of this Agreement.
5.01 (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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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 principlesb).
(rk) The Seller is not, Each purchase of a Receivable Interest and is not controlled by, an each reinvestment of Collections in Pool Receivables will constitute (i) a “investment companycurrent transaction” within the meaning of Section 3(a)(3) of the Investment Company Securities Act of 19401933, or is exempt from all provisions of such act.
(s) The receivables credit as amended, and collection policies and practices of the Originators attached hereto as Exhibit A are in effect as of the date of this Agreement. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions a purchase or other acquisition of notes, drafts, acceptances, open accounts receivable or other obligations representing part or all of the Initial Purchase Agreementsales price of merchandise, insurance or services within the meaning of Section 3(c)(5) 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
(1) The Seller is not known by and does not use any tradename or doing-business-as name.
Appears in 1 contract
Sources: Receivables Purchase Agreement (BRP Japan Co. Ltd.)
Representations and Warranties of the Seller. (a) The Seller represents and warrants as follows:
to the Buyer that (ai) The the Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, the State of Delaware and is duly qualified has the corporate power and authority to do business, enter into this Agreement and is in good standing, in every jurisdiction where the nature of to carry out its business requires it to be so qualified, unless the failure to so qualify would not have a material adverse effect on (i) the interests of the Purchaser obligations hereunder, (ii) the collectibility execution and delivery of the Transferred Receivables, or (iii) the ability of this Agreement by the Seller or and the Collection Agent to perform their respective obligations hereunder.
(b) The execution, delivery and performance consummation 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) transactions contemplated hereby have been duly authorized by all necessary corporate action, action on the part of the Seller and no other corporate proceedings on the part of the Seller are necessary to authorize this Agreement or any of the transactions contemplated hereby and (iii) do not contravene (1) the Seller’s organizational documents, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction 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 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, Seller and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is constitutes a party or any other document to be delivered by it thereunder 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 Seller, enforceable against the Seller in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity)terms.
(eb) Sales made pursuant to Neither the execution and delivery of this Agreement will constitute a valid sale, transfer, and assignment or the other documents to be executed on the Option Closing Date by the Seller nor the consummation of the Transferred Receivables to transactions contemplated hereby or thereby will: (i) conflict with or violate any provision of the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) There is no pending or, to the knowledge certificate or articles of incorporation or by-laws 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) conflict with or violate any statute, law, rule, regulation, ordinance, order, writ, injunction, judgment or decree applicable to acquire any security in any transaction which is subject to Section 13 or 14 of such Act the Seller, or (iii) for conflict with or result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or result in the creation of any Lien pursuant to, any agreement or other instrument to which the Seller is a party or by which any of its assets are bound. No notice, declaration, report or other filing or registration with, and no waiver, consent, approval or authorization of, any governmental or regulatory authority or instrumentality or any other purpose that violates applicable lawperson is required to be given, including Regulation G made 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, is owned (immediately prior to its sale hereunder) obtained 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 Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation execution, delivery or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date performance of this Agreement.
(mc) The names and addresses of all At 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 ReceivableOption Closing, the Seller (i) shall have received each Transferred Receivable acquired by it as a contribution will transfer good title to the capital Option Assets, free and clear of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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 Codeall Liens.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Option Agreement (Carson Inc)
Representations and Warranties of the Seller. The Seller represents and warrants to BEL as of the Execution Date and which is deemed to be repeated as of the Scheduled Commercial Operation Date as follows:
(a) 19.1.1 The Seller is a corporation duly organized, validly existing and in good standing under the laws Laws of DelawareBelize and the Seller has all requisite power and has (or, at the appropriate time therefor, will have) the authority to conduct its business, to own its properties and to execute, deliver and perform its obligations under this Agreement.
19.1.2 The execution, delivery, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature performance of its business requires it obligations under this Agreement by the Seller do not and shall not:
(a) violate any provision of any Law, rule, regulation, order, writ, judgment, injunction, decree, determination, Governmental Approval, or award having applicability to the Seller, the violation of which could reasonably be so qualified, unless the failure expected to so qualify would not 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 perform their respective its obligations hereunder.under this Agreement;
(b) The executionresult in a breach of, delivery or constitute a default under, any provision of the memorandum and performance by the Seller articles of this Agreement and the other documents to be delivered by it hereunder, including incorporation or by-laws of the Seller’s sale ;
(c) result in a breach of, or constitute a default under, any agreement relating to the management or affairs 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 corporate 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 binding on indenture, loan or affecting credit agreement or any other agreement, lease or instrument to which the Seller is a Party or by which the Seller or its property properties or (4) any orderassets may be bound, writ, judgment, award, injunction the breach or decree binding default of which could reasonably be expected to have a material adverse effect on or affecting the ability of the Seller or to perform its propertyobligations under this Agreement; or
(d) result in, and (iv) do not result in or require the creation or imposition of any lienmortgage, security interest trust, pledge, charge or other charge or encumbrance of any nature (other than as may be contemplated by this Agreement) upon or with respect to any of the assets or properties of the Seller now owned or hereafter acquired, the creation or imposition of which could reasonably be expected to have a material adverse effect on the ability of the Seller to perform its properties (except for the transfer obligations under this Agreement.
19.1.3 This Agreement constitutes legal, valid, binding and enforceable obligations of the Seller’s interest in the 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting Laws applicable to the enforcement Seller and subject to the application of creditors’ rights generally and general principles of equity, equity (regardless of whether considered in an action a proceeding in equity or at law law), including (i) the possible unavailability of specific performance, injunctive relief or equity)any other equitable remedy and (ii) concepts of materiality, reasonableness, good faith and fair dealing.
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any Transferred Receivable.
(f) [Intentionally omitted.]
(g) 19.1.4 There is no pending or, to the knowledge best of the Seller’s knowledge, threatened, action, investigation threatened action or proceeding affecting against the Seller or any of its subsidiaries before any court, governmental agency Governmental Authority or arbitrator which may have a Material Adverse Effect.
(h) No proceeds of any Purchase will that could reasonably be used (i) expected materially and adversely to acquire any equity security of a class which is registered pursuant to Section 12 of affect the Securities Exchange Act of 1934, (ii) to acquire any security in any transaction which is subject to Section 13 financial condition 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 operations 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 ability of the Seller in accordance with the Initial Purchase Agreement, in favor of Purchaser in accordance with this Agreementto perform its obligations hereunder, or in connection with any Adverse Claim arising solely as that purports to affect the result of any action taken by the Purchaser. Nothing in this Section 4.01(j) shall constitute a representation legality, validity or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date enforceability of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Power Purchase Agreement
Representations and Warranties of the Seller. The Seller represents hereby represents, warrants and warrants covenants to the Indenture Trustee, the Owner Trustee, the Issuer, the Note Insurer and to the Owners as followsof the Closing Date that:
(a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of Delaware, and is duly qualified to do business, the State of California and is in good standing, standing as a foreign corporation in every 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, unless conducted and to enter into and discharge its obligations under this Agreement and the failure other Operative Documents to so qualify would not have which it is 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 perform their respective obligations hereunderparty.
(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 corporate powers, (ii) other Operative Documents to which it is a party have been duly authorized by all necessary corporate action, (iii) do action on the part of the Seller and will not contravene (1) violate the Seller’s organizational documents's Articles 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 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 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 Sellerproperties.
(c) No authorization or approval or This Agreement and the other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the Transaction Operative Documents to which it the Seller is a party or any other document to be delivered party, assuming due authorization, execution and delivery by it thereunder 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 parties hereto and thereto, each constitutes the legala valid, valid legal and binding obligation of the Seller Seller, enforceable against the Seller it in accordance with its the terms (hereof and thereof, except as enforceability the enforcement hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and by general principles of equity, equity (whether considered in an a proceeding or action in equity or at law law).
(d) The Seller is not in default with respect to any order or equity)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) Sales made pursuant 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 will constitute or any other Operative Document to which it is a valid sale, transfer, party or that would materially and assignment adversely affect the condition (financial or otherwise) or operations of the Transferred Receivables to Seller or its properties or might have consequences that would materially and adversely affect the Purchaser, enforceable against creditors of, and purchasers from, validity or enforceability of Mortgage Loans or the Seller. The Seller shall have no remaining property interest in any Transferred Receivable's performance hereunder or under the other Operative Documents to which it is a party.
(f) [Intentionally omittedNo certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading.]
(g) There The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is no pending orresponsible in accordance with the Operative Documents or which are attributed to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to the Seller or 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 Seller'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 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 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 Closing Date, 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 performance by the Seller of its obligations under this Agreement and such of the other Operative Documents to which it is a party.
(i) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(j) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Mortgage Loans.
(k) The Seller did not sell any interest in any Mortgage Loan with any intent to hinder, delay or defraud any of its creditors.
(l) The Seller is solvent and the Seller will not be rendered insolvent as a result of the sale of the Mortgage Loans.
(m) On the Closing Date, the Issuer will have good title to each Mortgage Loan and such other items comprising the corpus of the Trust Estate free and clear of any lien.
(n) There has been no material adverse change in any information submitted by the Seller to the Note Insurer.
(o) To the best knowledge of the Seller, threatened, action, investigation or proceeding affecting no event has occurred which would allow any purchaser of the Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may have a Material Adverse EffectNotes not to be required to purchase the Notes on the Closing Date.
(hp) No proceeds of any Purchase will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 To the best knowledge of the Securities Exchange Act of 1934Seller, no document (iiincluding any information provided in electronic form) 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 submitted 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against Note Insurer contains any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(k) Each Seller Report (if prepared by the Seller, untrue 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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation misleading statement of a new Collection Agent pursuant material fact or fails to Section 6.01 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection Agent, if other than IR Company or an affiliate thereof, shall be state a material fact required to be bound by a confidentiality agreement reasonably acceptable stated therein or necessary in order to make the applicable Originator), except for those programs licensed from Persons which are statements therein 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 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 Sellermisleading.
(q) The Seller has (i) timely filed all federal tax returns required to be filedTo the best knowledge of the Seller, (ii) timely filed all other no material state and local tax returns, and (iii) paid or made adequate provision adverse change affecting any security for the Notes has occurred prior to delivery of and 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 for 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)Notes.
(r) The Seller is not, and is not controlled by, an “investment company” within in default under any agreement involving financial obligations or on any outstanding obligation which would materially adversely impact the meaning financial condition or operations of the Investment Company Act of 1940, Seller or is exempt from all provisions of such act.
(s) The receivables credit and collection policies and practices of legal documents associated with the Originators attached hereto as Exhibit A are transaction contemplated in effect as of the date of this Agreement. Since It is understood and agreed that the date representations and warranties set forth in this Section 2.1 shall survive delivery 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 Mortgage Loans to the capital of the Seller by the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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 CodeIssuer.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Sale and Servicing Agreement (First Alliance Mortgage Loan Trust 1998-2)
Representations and Warranties of the Seller. The Seller represents represents, warrants and warrants covenants to the Purchaser, as followsof the Funding Date or as of such other date specified below, that:
(ai) The Seller is a corporation duly organized, validly existing and corporation in good standing under the laws of Delaware, the State of New York and is duly qualified to do businesstransact business in, and is in good standingstanding under the laws of, in every jurisdiction where and possesses all licenses necessary for the nature conduct of its business requires in, each state in which any Mortgaged Property is located or is otherwise exempt or not required under applicable law to effect such qualification or license and no demand for such qualification or license has been made upon the Seller by any such state, and in any event the Seller is in compliance with the laws of each such State to the extent necessary to ensure the enforceability of each Mortgage Loan;
(ii) 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 of this Agreement, has duly executed and delivered this Agreement and each Assignment of Mortgage to the Purchaser constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms subject to be so qualifiedbankruptcy laws and other similar laws of general application affecting rights of creditors and subject to the application of the rules of equity, unless including those respecting the failure availability of specific performance;
(iii) None of the execution and delivery of this Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans to so qualify would not the Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller’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 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 a material adverse effect on (i) the interests sale of the Purchaser hereunderrelated Mortgage Loans, (ii) the collectibility execution, delivery or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Transferred Receivables, or (iii) the ability of the Seller or the Collection Agent to perform their respective obligations hereunder.Seller;
(bv) The 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 compliance by the Seller with this Agreement, the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement except for consents, approvals, authorizations and the other documents to be delivered by it hereunder, including the Seller’s sale of Receivables hereunder and the Seller’s use orders which have been obtained;
(vi) The consummation of the proceeds transactions contemplated by this Agreement is in the ordinary course of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1) the Seller’s organizational documents, (2) any law, rule or regulation applicable to business of the Seller, (3) any contractual restriction 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 Transferred Receivables pursuant to this Agreement). This Agreement and each of the other Transaction Documents to be delivered Mortgages 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 for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder 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 (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, whether considered in an action at law or equity).
(e) Sales made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables are not subject to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. The Seller shall have no remaining property interest bulk transfer or any similar statutory provisions in effect in any Transferred Receivable.applicable jurisdiction;
(fvii) [Intentionally omitted.]
(g) There is no pending orNeither this Agreement nor any statement, 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 report or other written statement made by agreement, document 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, 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 the Purchaser). When the Purchaser makes a Purchase it shall acquire valid and perfected first priority ownership of each Transferred 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 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 the Seller in accordance with the Initial 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. Nothing in this Section 4.01(j) shall constitute a representation or warranty by the Seller as to the priority, as against any other secured creditors of the relevant Obligor, of any Underlying Inventory Security Interest.
(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 its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished.
(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). The Seller has not changed its name during the two years prior to the date of this Agreement.
(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)). 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 known by or uses any registered tradename or doing-business-as name.
(o) With respect to any programs used 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 so that such new Collection Agent shall have the benefit of such programs (it being understood that, however, the Collection 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 sale of Transferred Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between Agreement contains or will contain any materially untrue statement of facts or omits or will omit to state a fact necessary to make 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 statements contained therein 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. 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 the applicable Originator or (ii) shall have purchased such Transferred Receivable from the applicable Originator in exchange for payment (made by the Seller to the applicable Originator in accordance with the provisions of the Initial 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 (ii) 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.
(v) Each Receivable is an “eligible asset” as defined in Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended.misleading; and
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Sources: Mortgage Loan Flow Purchase, Sale, and Servicing Agreement (Sequoia Mortgage Trust 2007-1)