REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each of the Originators represents and warrants as to itself as follows: (a) Such Originator is either a corporation, a limited liability company or a limited partnership, duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect. (b) The execution, delivery and performance by such Originator of this Agreement and all other Originator Documents to be entered into by it, including such Originator’s sale of Receivables and use of the proceeds of Purchases, are within such Originator’s corporate, limited liability company or partnership powers, have been duly authorized by all necessary corporate, limited liability company or partnership action, do not contravene (i) such Originator’s charter, by-laws, limited liability company agreement or limited partnership agreement, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting such Originator or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting such Originator or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Buyer with respect to the Purchased Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator have each been duly executed and delivered by such Originator. (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 such Originator of this Agreement or any other Originator Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to such Originator’s knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder. (d) This Agreement and each other Originator Document to be entered into by such Originator constitute the legal, valid and binding obligation of such Originator enforceable against such Originator in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (i) The Authorized Representative has furnished to the Buyer and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and (ii) Since December 31, 2011, (A) no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect. (f) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there is no material pending legal proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent or any of its subsidiaries is a party or of which any of their property is the subject, or (ii) that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivables. None of the Parent, CHS, any Originator or the Collection Agent 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 and its subsidiaries taken as a whole. (g) No proceeds of any Purchase will be used by such Originator to acquire any security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended. (h) Immediately prior to each Purchase hereunder, each Receivable to be sold hereunder, together with the Contract related thereto and the other Purchased Property relating thereto, is owned by such Originator free and clear of any Lien (other than Permitted Liens), and the Buyer shall acquire all of such Originator’s right, title and interest in such Purchased Property and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens referred to in clauses (b) and (d) of the definition thereof) except as created hereby, by the Company under the Contribution Agreement (to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such Originator or the Authorized Representative. No effective financing statement or other instrument similar in effect covering any Purchased Property shall at any time be on file in any recording office except such as may be filed in favor of the Buyer relating to this Agreement or in favor of the Company under the Contribution Agreement (to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative. The Purchases of the Purchased Property by the Buyer constitute valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property for security purposes), enforceable against creditors of the Buyers and no Purchased Property shall constitute property of such Originator. (i) No Monthly Report (if prepared by the Collection Agent, such Originator or any of their respective Affiliates, or to the extent that information contained therein is supplied by the Collection Agent, such Originator or any such Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Authorized Representative or an Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate in any material respect as of the date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, at such time) as of the date so furnished or dated, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time made. (j) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, principal place of business and chief executive office and the office where such Originator keeps all of its Records are set forth on Schedule III hereto. As of the Closing Date, such Originator does not have any currently registered trade names, fictitious names, assumed names or “doing business as” names or other names under which it is doing business, except as set forth on Schedule III. (k) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Termination. (l) This Agreement is the only agreement pursuant to which such Originator sells Receivables (other than, prior to May 31, 2012, AccessOne Receivables). (m) The Purchase Price constitutes reasonably equivalent value in consideration for the transfer to the Buyer of the Purchased Property from such Originator, no such transfer shall have been made for or on account of an antecedent debt owed by such Originator to the Buyer, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law. (n) Such Originator is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originator. (o) Such Originator accounts for and otherwise treats each Purchase of Purchased Property hereunder in its books, records and financial statements as a legal sale of such Purchased Property, in each case to the extent other treatment is not required by GAAP. (p) Such Originator has not (i) guaranteed or otherwise become liable for any obligation of the Company, allowed any of its other Affiliates to guarantee any obligations of the Company, and neither such Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company or actions with respect to the business and affairs of the Company, or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company and has not otherwise permitted any other of its Affiliates to commingle or pool any of its funds or other assets with those of the Company in a manner that would not allow such funds or other assets to be readily identifiable from those of any other Person. The Originators and the Company allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Fee (including the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered. Such Originator acknowledges that the Company, the Lenders, the Managing Agents and the Administrative Agent are entering into the transactions contemplated by the Contribution Agreement and the Loan Agreement in reliance upon the Company’s identity as a separate legal entity from each of the Parent, CHS, each Originator and each of their other respective Affiliates. (q) Such Originator is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under the Investment Company Act. (r) Such Originator is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amended). No part of the proceeds of any Purchased Property has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X. (s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, in the case of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the Buyer. (t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect. (u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded
Appears in 2 contracts
Sources: Receivables Sale Agreement, Receivables Sale Agreement (Community Health Systems Inc)
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each of the Originators Originator represents and warrants as to itself as follows:
(a) Such Originator It is either a corporation, a limited liability company or a limited partnership, duly incorporated or organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation or organization its organization, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effectqualified.
(b) The execution, delivery and performance by such Originator of this Agreement and all the other Originator Documents documents to be entered into delivered by itit hereunder, including such the Originator’s sale and contribution of Receivables and use of the proceeds of Purchaseshereunder, (i) are within such the Originator’s corporate, corporate or limited liability company or partnership powers, (ii) have been duly authorized by all necessary corporate, corporate or limited liability company or partnership action, (iii) do not contravene (i1) such the Originator’s charter, charter or by-laws, limited liability company agreement laws or limited partnership agreement, (ii2) any Applicable Law except where such contravention could not reasonably be expected law, rule or regulation applicable to result in a Material Adverse Effectthe Originator, (iii3) any material contractual or limited partnership agreement restriction binding on or affecting such the Originator or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv4) any material order, writ, judgment, award, injunction or decree binding on or affecting such the Originator or its property, and (iv) do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than in favor except for the transfer of the Buyer with respect Originator’s interest in the Transferred Receivables pursuant to the Purchased Propertythis Agreement), ; and no transaction contemplated hereby by this Agreement requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator have each has been duly executed and delivered by such a duly authorized officer of the Originator.
(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 such the Originator of this Agreement or any other Originator Document document to be entered into by itdelivered hereunder, except (i) for the filing of UCC financing statements, all of statements which financing statements have been duly filed and, are referred to such Originator’s knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderherein.
(d) This Agreement and each other Originator Document to be entered into by such Originator constitute constitutes the legal, valid and binding obligation of such the Originator enforceable against such the Originator in accordance with their respective terms its terms, subject to bankruptcy bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors creditors’ rights generally and general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(ie) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer and assignment of the Transferred Receivables to the Buyer, enforceable against creditors of, and purchasers from, the Originator. The Originator shall have no remaining property interest in any Transferred Receivable.
(f) The Authorized Representative has furnished to the Buyer and the Administrative Agent copies of the Parent’s audited consolidated balance sheet sheets of United Rentals and its Subsidiaries as at December 31, 2011the end of its most recent fiscal year, and the related audited consolidated statements of income and cash flow retained earnings of United Rentals and its Subsidiaries for such fiscal year, copies of which have been furnished to the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements Buyer, fairly present fairly in all material respects in accordance with GAAP the financial position condition of the Parent United Rentals and its consolidated subsidiaries Subsidiaries as at December 31, 2011, such date and the results of the operations of the Parent United Rentals and its consolidated subsidiaries Subsidiaries for the fiscal year of the Parent then endedperiod ended on such date, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such dategenerally accepted accounting principles consistently applied, and since the results end of operations of the Parent and its consolidated subsidiaries for the most recent fiscal year then ended; and
(ii) Since December 31, 2011, (A) there has been no material adverse change has occurred in the business, assetsoperations, liabilitiesproperty or financial condition of United Rentals and its Subsidiaries.
(g) There is no pending or, to the Originator’s knowledge, threatened action or proceeding affecting the Originator before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect.
(f) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there is no material pending legal proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent or any of its subsidiaries is a party or of which any of their property is the subject, or (ii) that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivables. None of the Parent, CHS, any Originator or the Collection Agent ability of the Originator to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement; the Originator is not in default with respect to any order of any court, arbitrator arbitration 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 and its subsidiaries taken as a wholeOriginator.
(gh) No proceeds of any Purchase purchase will be used by such Originator to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(hi) Immediately prior to each Purchase hereunder, each Receivable to be sold hereunderEach Transferred Receivable, together with the Contract related thereto and the other Purchased Property relating theretoRelated Security, is owned (prior to its sale or contribution hereunder) by such the Originator free and clear of any Lien Adverse Claim (other than Permitted Liensany Adverse Claim arising solely as the result of any action taken by the Buyer), and . When the Buyer makes a purchase or receives a contribution of a Contributed Receivable it shall acquire all valid ownership of such Originator’s right, title each Transferred Receivable and interest in such Purchased Property and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, thereto free and clear of any Lien Adverse Claim (other than Permitted Liens referred to in clauses (b) and (d) any Adverse Claim arising solely as the result of the definition thereof) except as created hereby, any action taken by the Company under the Contribution Agreement (to the extent assigned to the Administrative AgentBuyer), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such Originator or the Authorized Representative. No effective financing statement or other instrument similar in effect covering any Purchased Property shall at Contract or any time be Transferred Receivable, any interest therein, 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 Buyer relating to this Agreement or in favor of the Company under the Contribution Agreement (and those filed pursuant to the extent assigned to SPV Purchase Agreement and the Administrative Agent), and by the Administrative Agent under the Loan Receivables Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative. The Purchases of the Purchased Property by the Buyer constitute valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property for security purposes), enforceable against creditors of the Buyers and no Purchased Property shall constitute property of such Originator.
(ij) No Monthly Report (if prepared by the Collection Agent, such Originator or any of their respective Affiliates, or to the extent that information contained therein is supplied by the Collection Agent, such Originator or any such Affiliates)Each report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Authorized Representative or an Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate true, complete and accurate in any all material respect respects as of the its date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, Buyer at such time) as of the date so furnished or dated, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time madefurnished.
(jk) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, The principal place of business and chief executive office of the Originator and the office where such the Originator keeps all of its Records records concerning the Transferred Receivables are set forth on Schedule III hereto. As of located at the Closing Date, such Originator does not have any currently registered trade names, fictitious names, assumed names address or “doing business as” names or other names under which it is doing business, except as set forth on Schedule III.
(k) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Terminationaddresses referred to in Section 5.01(b).
(l) This Agreement The Originator is the only agreement pursuant to which such Originator sells Receivables (other than, prior to May 31, 2012, AccessOne Receivables)not known by and does not use any tradename or doing-business-as name.
(m) The Purchase Price constitutes With respect to any programs used by the Originator in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent so that such new Collection Agent shall have the benefit of such programs (it being understood, however, that the Collection Agent, if other than United Rentals, shall be required to be bound by a confidentiality agreement reasonably equivalent value in consideration for the transfer acceptable to the Buyer of the Purchased Property from such Originator, no such transfer shall have been made for or on account of an antecedent debt owed by such Originator to the Buyer, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy LawOriginators).
(n) Such Originator is not an insolvent personAll sales, in insolvent circumstances excise or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originator.
(o) Such Originator accounts for and otherwise treats each Purchase of Purchased Property hereunder in its books, records and financial statements as a legal sale of such Purchased Property, in each case to the extent other treatment is not required by GAAP.
(p) Such Originator has not (i) guaranteed or otherwise become liable for any obligation of the Company, allowed any of its other Affiliates to guarantee any obligations of the Company, and neither such Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company or actions taxes with respect to the business and affairs of merchandise, insurance or services which are the Company, or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company and has not otherwise permitted any other of its Affiliates to commingle or pool any of its funds or other assets with those of the Company in a manner that would not allow such funds or other assets to be readily identifiable from those subject of any other Person. The Originators and the Company allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Fee (including the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on Contract for a basis reasonably related to actual use or the value of services rendered. Such Originator acknowledges that the Company, the Lenders, the Managing Agents and the Administrative Agent are entering into the transactions contemplated Receivable have been paid by the Contribution Agreement and the Loan Agreement in reliance upon the Company’s identity as a separate legal entity from each of the Parent, CHS, each Originator and each of their other respective Affiliateswhen due.
(q) Such Originator is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under the Investment Company Act.
(r) Such Originator is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amended). No part of the proceeds of any Purchased Property has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X.
(s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, in the case of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the Buyer.
(t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect.
(u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded
Appears in 1 contract
Sources: Purchase and Contribution Agreement (United Rentals North America Inc)
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each The Originators represent and warrant that as of the Originators represents date hereof and warrants as to itself as followsof the date of the Purchase:
(a) Such Originator Each of the Originators is either a corporation, a limited liability company or a limited partnership, corporation duly incorporated or organizedincorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by such Originator the Originators of this Agreement and all other Originator Documents to be entered into by itthem, including such Originator’s sale of Receivables and the Originators' use of the proceeds of Purchasesthe Purchase, are within such each Originator’s corporate, limited liability company or partnership 's corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, do not contravene (i) such each Originator’s charter, 's charter or by-laws, limited liability company agreement or limited partnership agreement, (ii) any Applicable Law except where such contravention could not reasonably be expected law, rule or regulation applicable to result in a Material Adverse Effectthe Originators, (iii) any material contractual restriction binding on or affecting such each Originator or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting such each Originator or its property, and do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than in favor of the Buyer with respect to the Purchased PropertyTransferred Assets), ; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator the Originators have each been duly executed and delivered by such Originatorthe Originators.
(c) This Agreement and each other Originator Document to be entered into by the Originators constitute the legal, valid and binding obligation of the Originators enforceable against each Originator in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and principles of equity.
(d) 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 such Originator the Originators of this Agreement or any other Originator Document to be entered into by itthem, except (i) for the filing of the UCC financing statementsstatements referred to in ARTICLE III, all of which financing statements have been duly filed and, to such Originator’s knowledge, executed and are in full force proper form for filing in the relevant jurisdictions.
(e) No filing, recording, notice or acknowledgment is necessary in any jurisdiction to provide third parties with notice of the sale of the Receivables herein contemplated, and effectto give to the Buyer a first priority perfected security interest in such Receivables, except for (i) the filing of the UCC financing statements referred to in ARTICLE III, all of which financing statements have been duly executed and are in proper form for filing in the relevant jurisdictions and (ii) such as the delivery of the notices of change of ownership referred to in ARTICLE III, all of which notices of change of ownership have been made or obtained duly executed and are in full force and effect and (iii) where proper form for delivery to the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Originator Document to be entered into by such Originator constitute the legal, valid and binding obligation of such Originator enforceable against such Originator in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)relevant Reinsurance Companies.
(i) The Authorized Representative Each Originator has furnished to the Buyer and the Administrative Deal Agent (A) copies of the Parent’s audited consolidated balance sheet sheets of each Originator and its consolidated subsidiaries as at December 31June 30, 20111998, and the related audited consolidated statements of income income, shareholders' equity and cash flow flows for the fiscal year of the Parent each Originator and its consolidated subsidiaries then ended reported on by Deloitte & Touche LLP June 30, 1998, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent each Originator and its consolidated subsidiaries as at December 31June 30, 20111998, and the results of operations of the Parent each Originator and its consolidated subsidiaries for the fiscal year of each Originator then ended, and (B) copies of the Parent unaudited consolidated balance sheets of each Originator and its consolidated subsidiaries as at September 30, 1998, and the related unaudited consolidated statements of income, shareholders' equity and cash flows for the three-month period then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent each Originator and its consolidated subsidiaries as at such dateSeptember 30, 1998, and the results of operations of the Parent each Originator and its consolidated subsidiaries for the fiscal year three-month period then ended; and
and (ii) Since December 31since September 30, 20111998, (A) no material adverse change has occurred in the business, assets, liabilities, financial condition condition, or results of operations or business prospects of the Parent each Originator and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had had, or could reasonably be expected to result inmay have, singly or in the aggregate, a Material Adverse Effect.
(fg) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there There is no material pending legal or threatened action or proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent affecting any Originator or any subsidiaries of its subsidiaries is a party any Originator before any court, governmental agency or of which any of their property is the subject, or (ii) arbitrator that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivableshave a Material Adverse Effect. None of the ParentOriginators, CHS, or any subsidiary of any Originator or the Collection Agent 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 and its subsidiaries taken as a wholeOriginators or any subsidiary of any of the Originators.
(gh) No proceeds of any the Purchase will be used by such Originator the Originators to acquire any security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(hi) Immediately prior to each the Purchase hereunder, each Receivable to be sold hereunder, together with the Contract related thereto and the other Purchased Property Transferred Assets relating thereto, is owned by such the applicable Originator free and clear of any Lien (other than Permitted Liens)Adverse Claim except as provided herein or permitted hereby, and the Buyer shall acquire all of such Originator’s 's right, title and interest in such Purchased Property Transferred Assets and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens referred to in clauses (b) and (d) of the definition thereof) Adverse Claim except as created hereby, hereby or by the Company under Buyer in the Contribution Receivables Purchase Agreement (to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that or any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such Originator or the Authorized Representativerelated document. No effective financing statement or other instrument similar in effect covering any Purchased Property Transferred Assets shall at any time be on file in any recording office except such as may be filed in favor of the Buyer relating to this Agreement or in favor of assignees of the Company Buyer under the Contribution Agreement (Receivables Purchase Agreement. No notice of the change of ownership of any Transferred Assets shall at any time have been or be delivered to any Obligor except such as may be delivered to give notice of the change in ownership of the Transferred Assets comprised of Reinsurance Recoverables to the extent assigned Buyer pursuant to this Agreement or to the Administrative Agent), and by assignees of the Administrative Agent under Buyer pursuant to the Loan Receivables Purchase Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative. The Purchases Purchase of the Purchased Property Transferred Assets by the Buyer constitute true and valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property Transferred Assets for security purposes), enforceable against creditors of the Buyers and no Purchased Property Transferred Assets shall constitute property of such any Originator.
(ij) No Monthly Report (if prepared by the Collection Agent, such Originator or any of their respective Affiliates, or to the extent that information contained therein is supplied by the Collection Agent, such Originator or any such Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Authorized Representative or an any Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate in any material respect as of the date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, at such time) as of the date so furnished or datedfurnished, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time made.
(jk) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, The principal place of business and chief executive office of the Originators and the office offices where such Originator keeps the Originators keep all of its the Records are set forth on Schedule III hereto. As located at the addresses of the Closing DateOriginators referred to in SECTION 9.02 hereof (or at such other locations as to which the notice and other requirements specified in SECTION 6.08 shall have been satisfied).
(l) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Originator does not Lock-Box Banks and the names, addresses and account numbers of all accounts to which Collections of the Receivables outstanding before the Purchase hereunder have been sent, are specified in SCHEDULE III (which shall be deemed to be amended in respect of terminating or adding any currently registered Lock-Box Account or Lock-Box Bank upon satisfaction of the notice and other requirements specified in respect thereof). The Originators have no other lock-box accounts or similar deposit accounts for the collection of the Transferred Assets except for the Lock-Box Accounts. No Adverse Claim exists upon or with respect to any of the Lock-Box Accounts.
(m) Except as described in SCHEDULE IV, none of the Originators has any trade names, fictitious names, assumed names or “"doing business as” " names or other names under which it has done (at any time during the five year period preceding the date hereof) or is currently doing business, except as set forth on Schedule III.
(k) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Termination.
(l) This Agreement is the only agreement pursuant to which such Originator sells Receivables (other than, prior to May 31, 2012, AccessOne Receivables).
(mn) The Purchase Price constitutes reasonably equivalent value in consideration for the transfer to the Buyer of the Purchased Property Transferred Assets from such Originator, the Originators and no such transfer shall have been made for or on account of an antecedent debt owed by such any Originator to the Buyer, Buyer and no such transfer is or may be voidable or subject to avoidance under any section Section of the Bankruptcy LawCode.
(no) Such Each Originator has received advice from its counsel which is consistent with the conclusions set forth in the legal opinion(s) of ▇▇▇▇▇ & ▇▇▇▇▇, relating to the issues of substantive consolidation and true sale of the Receivables and the related property.
(p) Each Originator is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and solvent at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve transfer of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator Transferred Assets to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originatorhereunder.
(oq) Such Each Originator accounts has accounted for and has otherwise treats each treated the Purchase of Purchased Property Transferred Assets hereunder in its books, records and financial statements as a legal sale of such Purchased Propertyto the Buyer, in each case to consistent with GAAP and with the extent other treatment is not required by GAAPrequirements set forth herein.
(pr) Such Originator has not (i) guaranteed or otherwise become liable for any obligation None of the Company, allowed any of its other Affiliates to guarantee any obligations of the Company, and neither such Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company or actions with respect to the business and affairs of the Company, or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company and has not otherwise permitted any other of its Affiliates to commingle or pool any of its funds or other assets with those of the Company in a manner that would not allow such funds or other assets to be readily identifiable from those of any other Person. The Originators and the Company allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Fee (including the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered. Such Originator acknowledges that the Company, the Lenders, the Managing Agents and the Administrative Agent are entering into the transactions contemplated by the Contribution Agreement and the Loan Agreement in reliance upon the Company’s identity as a separate legal entity from each of the Parent, CHS, each Originator and each of their other respective Affiliates.
(q) Such Originator is not an “"investment company” " or a company controlled by an “"investment company” " registered or required to be registered under the Investment Company Act, or otherwise subject to any other federal or state statute or regulation limiting its ability to incur indebtedness.
(rs) Such Originator None of the Originators is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “"purchasing” " or “"carrying” " any “"margin stock” " (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amendedX). No part of the proceeds of any Purchased Property Transferred Asset has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X.
(s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, in the case of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the Buyer.
(t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect.
(u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Superior National Insurance Group Inc)
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each The Originators represent and warrant that as of the Originators represents date hereof, as of the date of the Initial Purchase and warrants as to itself as followsof the date of each subsequent Purchase:
(a) Such Originator Each of the Originators is either a corporation, a limited liability company or a limited partnership, corporation duly incorporated or organizedincorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by such Originator the Originators of this Agreement and all other Originator Documents to be entered into by itthem, including such Originator’s sale of Receivables and the Originators' use of the proceeds of Purchases, are within such each Originator’s corporate, limited liability company or partnership 's corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, do not contravene (i) such each Originator’s charter, 's charter or by-laws, limited liability company agreement or limited partnership agreement, (ii) any Applicable Law except where such contravention could not reasonably be expected law, rule or regulation applicable to result in a Material Adverse Effectthe Originators, (iii) any material contractual restriction binding on or affecting such each Originator or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting such each Originator or its property, and do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than in favor of the Buyer with respect to the Purchased PropertyTransferred Assets), ; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator the Originators have each been duly executed and delivered by such Originatorthe Originators.
(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 such Originator the Originators of this Agreement or any other Originator Document to be entered into by itthem, except (i) for the filing of the UCC financing statementsstatements referred to in Article III, all of which financing statements have been duly filed and, to such Originator’s knowledge, and are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Originator Document to be entered into by such Originator the Originators constitute the legal, valid and binding obligation of such Originator the Originators enforceable against such each Originator in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)equity.
(i) The Authorized Representative OutSource International has furnished to the Buyer and the Administrative Agent (A) copies of the Parent’s audited consolidated balance sheet sheets of OutSource International and its consolidated subsidiaries as at December 31, 20111998, and the related audited consolidated statements of income income, shareholders' equity and cash flow flows for the fiscal year of the Parent OutSource International and its consolidated subsidiaries then ended reported on by Deloitte & Touche LLP Touche, LLP, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent OutSource International and its consolidated subsidiaries as at December 31, 20111998, and the results of operations of the Parent OutSource International and its consolidated subsidiaries for the fiscal year of OutSource International then ended, and (B) copies of the Parent unaudited consolidated balance sheets of OutSource International and its consolidated subsidiaries as at June 30, 1999, and the related unaudited consolidated statements of income, shareholders' equity and cash flows for the three-month period then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent OutSource International and its consolidated subsidiaries as at such dateJune 30, 1999, and the results of operations of the Parent OutSource International and its consolidated subsidiaries for the fiscal year three-month period then ended; and
and (ii) Since December 31since June 30, 20111999, (A) no material adverse change has occurred in the business, assets, liabilities, financial condition condition, or results of operations or business prospects of the Parent OutSource International and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had had, or could reasonably be expected to result inmay have, singly or in the aggregate, a Material Adverse Effect.
(f) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there There is no material pending legal or threatened action or proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent affecting any Originator or any subsidiaries of its subsidiaries is a party any Originator before any court, governmental agency or of which any of their property is the subject, or (ii) arbitrator that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivableshave a Material Adverse Effect. None of the ParentOriginators, CHS, or any subsidiary of any Originator or the Collection Agent 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 and its subsidiaries taken as a wholeOriginators or any subsidiary of any of the Originators.
(g) No proceeds of any Purchase will be used by such Originator the Originators to acquire any security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(h) Immediately prior to each Purchase hereunder, each Receivable to be sold hereunder, together with the Contract related thereto and the other Purchased Property Transferred Assets relating thereto, is owned by such the applicable Originator free and clear of any Lien (other than Permitted Liens)Adverse Claim except as provided herein or permitted hereby, and the Buyer shall acquire all of such Originator’s 's right, title and interest in such Purchased Property Transferred Assets and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens referred to in clauses (b) and (d) of the definition thereof) Adverse Claim except as created hereby, hereby or by the Company under Buyer in the Contribution OutSource Funding Credit Agreement (to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that or any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such Originator or the Authorized Representativerelated document. No effective financing statement or other instrument similar in effect covering any Purchased Property Transferred Assets shall at any time be on file in any recording office except such as may be filed in favor of the Buyer relating to this Agreement or in favor of the Company under the Contribution Agreement (to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan OutSource Funding Credit Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative. The Purchases of the Purchased Property Transferred Assets by the Buyer constitute true and valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property Transferred Assets for security purposes), enforceable against creditors of the Buyers and no Purchased Property Transferred Assets shall constitute property of such any Originator.
(i) No Monthly Asset Report or Weekly Settlement Report (if prepared by the Collection AgentOutSource International, such an Originator or any of their respective AffiliatesAffiliate thereof, or to the extent that information contained therein is supplied by the Collection AgentOutSource International, such an Originator or any such Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Authorized Representative OutSource International or an Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate in any material respect as of the date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, at such time) as of the date so furnished or datedfurnished, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time made.
(j) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, The principal place of business and chief executive office of the Originators and the office offices where such Originator keeps the Originators keep all of its the Records are set forth on located at the addresses of the Originators referred to in Section 9.02 hereof (or at such other locations as to which the notice and other requirements specified in Section 6.08 shall have been satisfied).
(k) 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 and the names, addresses and account numbers of all accounts to which Collections of the Receivables outstanding before the Initial Purchase hereunder have been sent, are specified in Schedule III hereto. As (which shall be deemed to be amended in respect of terminating or adding any Lock-Box Account or Lock-Box Bank upon satisfaction of the Closing Datenotice and other requirements specified in respect thereof). The Originators have no other lock-box accounts or similar deposit accounts for the collection of the Transferred Assets except for the Lock-Box Accounts.
(l) Except as described in Schedule IV, such Originator does not have none of the Originators has any currently registered trade names, fictitious names, assumed names or “"doing business as” " names or other names under which it has done (at any time during the five year period preceding the date hereof) or is currently doing business, except as set forth on Schedule III.
(km) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Termination.
(l) This Agreement is the only agreement pursuant to which such Originator sells Receivables (other than, prior to May 31, 2012, AccessOne Receivables).
(mn) The Purchase Price constitutes reasonably equivalent value in consideration for the transfer to the Buyer of the Purchased Property Transferred Assets from such Originator, the Originators and no such transfer shall have been made for or on account of an antecedent debt owed by such any Originator to the Buyer, Buyer and no such transfer is or may be voidable or subject to avoidance under any section Section of the Bankruptcy LawCode.
(no) Such Each Originator has received advice from its counsel which is consistent with the conclusions set forth in the legal opinion(s) of Rudn▇▇▇ & ▇olf▇, ▇▇unsel to the Originators relating to the issues of substantive consolidation and true sale of the Receivables and the related property.
(p) Each Originator is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and solvent at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve transfer of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator Transferred Assets to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originatorhereunder.
(oq) Such Each Originator accounts has accounted for and has otherwise treats treated each Purchase of Purchased Property Transferred Assets hereunder in its books, records and financial statements as a legal sale of such Purchased Propertyto the Buyer, in each case to consistent with GAAP and with the extent other treatment is not required by GAAPrequirements set forth herein.
(pr) Such Originator OutSource International owns one hundred percent (100%) of the outstanding capital stock of the Buyer and has not granted or issued any options, warrants or other rights to acquire any such capital stock.
(s) None of the Originators has (i) guaranteed or otherwise become liable for any obligation of the CompanyBuyer, allowed any of its other Affiliates to guarantee any obligations of the CompanyBuyer, and neither such no Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company Buyer or actions with respect to the business and affairs of the Company, Buyer; or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company Buyer and has not otherwise permitted any other of its Affiliates to commingle or pool any of its their funds or other assets with those of the Company in a manner that would not allow such funds or Buyer. Each of the Originators (i) has agreed with the Buyer, and has caused each of its other assets Affiliates to be readily identifiable from those of any other Person. The Originators and the Company extent applicable to agree with the Buyer, to allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Servicer Fee (including including, without limitation, the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered. Such Originator , (ii) has not named the Buyer, and has not allowed any other Affiliate to name the Buyer, as a direct or contingent beneficiary or loss payee on any insurance policy covering the property of the Originators, OutSource International or any other Affiliates; and (iii) acknowledges that the Company, the Lenders, the Managing Agents Buyer and the Administrative Agent are entering into the transactions contemplated by the Contribution Agreement and the Loan OutSource Funding Credit Agreement in reliance upon on the Company’s Buyer's identity as a separate legal entity from each of the ParentOriginators, CHS, each Originator OutSource International and each of their any other respective Affiliates.
(qt) Such Originator None of the Originators is not an “"investment company” " or a company controlled by an “"investment company” " registered or required to be registered under the Investment Company Act, or otherwise subject to any other federal or state statute or regulation limiting its ability to incur indebtedness.
(ru) Such Originator None of the Originators is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “"purchasing” " or “"carrying” " any “"margin stock” " (as each of the quoted terms is defined or used in Regulation G, T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amendedX). No part of the proceeds of any Purchased Property Transferred Asset has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation G, T, U or X.
(s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, in the case of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the Buyer.
(t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect.
(u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Outsource International Inc)
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each of the Originators represents and warrants as to itself as follows:
(a) Such Originator is either a corporation, a limited liability company or a limited partnership, duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by such Originator of this Agreement and all other Originator Documents to be entered into by it, including such Originator’s sale of Receivables and use of the proceeds of Purchases, are within such Originator’s corporate, limited liability company or partnership powers, have been duly authorized by all necessary corporate, limited liability company or partnership action, do not contravene (i) such Originator’s charter, by-laws, limited liability company agreement or limited partnership agreement, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting such Originator or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting such Originator or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Buyer with respect to the Purchased Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator have each been duly executed and delivered by such Originator.
(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 such Originator of this Agreement or any other Originator Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to such Originator’s knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Originator Document to be entered into by such Originator constitute the legal, valid and binding obligation of such Originator enforceable against such Originator in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(i) The Authorized Representative has furnished to the Buyer and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
(ii) Since December 31, 2011, (A) no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect.
(f) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there is no material pending legal proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent or any of its subsidiaries is a party or of which any of their property is the subject, or (ii) that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivables. None of the Parent, CHS, any Originator or the Collection Agent 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 and its subsidiaries taken as a whole.
(g) No proceeds of any Purchase will be used by such Originator to acquire any security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(h) Immediately prior to each Purchase hereunder, each Receivable to be sold hereunder, together with the Contract related thereto and the other Purchased Property relating thereto, is owned by such Originator free and clear of any Lien (other than Permitted Liens), and the Buyer shall acquire all of such Originator’s right, title and interest in such Purchased Property and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens referred to in clauses (b) and (d) of the definition thereof) except as created hereby, by the Company under the Contribution Agreement (to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such Originator or the Authorized Representative; provided further that ▇▇▇ County Oklahoma Hospital Company, LLC (acting directly or through the Authorized Representative) shall have the time period specified in Section 5.01(u) to remove and terminate the ▇▇▇ County Lien. No effective financing statement or other instrument similar in effect covering any Purchased Property shall at any time be on file in any recording office except such as may be filed in favor of the Buyer relating to this Agreement or in favor of the Company under the Contribution Agreement (to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative; provided further that ▇▇▇ County Oklahoma Hospital Company, LLC (acting directly or through the Authorized Representative) shall have the time period specified in Section 5.01(u) to remove and terminate the ▇▇▇ County Lien. The Purchases of the Purchased Property by the Buyer constitute valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property for security purposes), enforceable against creditors of the Buyers and no Purchased Property shall constitute property of such Originator.
(i) No Monthly Report (if prepared by the Collection Agent, such Originator or any of their respective Affiliates, or to the extent that information contained therein is supplied by the Collection Agent, such Originator or any such Affiliates), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Authorized Representative or an Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate in any material respect as of the date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, at such time) as of the date so furnished or dated, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time made.
(j) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, principal place of business and chief executive office and the office where such Originator keeps all of its Records are set forth on Schedule III hereto. As of the Closing Second Omnibus Amendment Effective Date, such Originator does not have any currently registered trade names, fictitious names, assumed names or “doing business as” names or other names under which it is doing business, except as set forth on Schedule III.
(k) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Termination.
(l) This Agreement is the only agreement pursuant to which such Originator sells Receivables (other than, prior to May 31, 2012, AccessOne Receivables).
(m) The Purchase Price constitutes reasonably equivalent value in consideration for the transfer to the Buyer of the Purchased Property from such Originator, no such transfer shall have been made for or on account of an antecedent debt owed by such Originator to the Buyer, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law.
(n) Such Originator is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originator.
(o) Such Originator accounts for and otherwise treats each Purchase of Purchased Property hereunder in its books, records and financial statements as a legal sale of such Purchased Property, in each case to the extent other treatment is not required by GAAP.
(p) Such Originator has not (i) guaranteed or otherwise become liable for any obligation of the Company, allowed any of its other Affiliates to guarantee any obligations of the Company, and neither such Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company or actions with respect to the business and affairs of the Company, or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company and has not otherwise permitted any other of its Affiliates to commingle or pool any of its funds or other assets with those of the Company in a manner that would not allow such funds or other assets to be readily identifiable from those of any other Person. The Originators and the Company allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Fee (including the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered. Such Originator acknowledges that the Company, the Lenders, the Managing Agents and the Administrative Agent are entering into the transactions contemplated by the Contribution Agreement and the Loan Agreement in reliance upon the Company’s identity as a separate legal entity from each of the Parent, CHS, each Originator and each of their other respective Affiliates.
(q) Such Originator is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under the Investment Company Act.
(r) Such Originator is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amended). No part of the proceeds of any Purchased Property has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X.
(s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, in the case of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the Buyer.
(t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect.
(u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded ,
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each of the Originators Originator represents and warrants as to itself as follows:
(a) Such Originator is either a corporation, a limited liability company or a limited partnership, duly incorporated or organized, an organization validly existing and in good standing under the laws of its the jurisdiction of incorporation or organization its organization, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effectqualified.
(b) The execution, delivery and performance by such Originator of this Agreement and all other Originator Documents each Transaction Document to be entered into by itwhich it is a party, including such Originator’s sale of Receivables and use of the proceeds of Purchases, (i) are within such Originator’s corporate, organizational or limited liability company or partnership powers, (ii) have been duly authorized by all necessary corporate, organizational or limited liability company or partnership action, (iii) do not contravene (i1) such Originator’s charter, charter or by-laws, limited liability company agreement laws or limited partnership agreement, (ii2) any Applicable Law except where law, rule or regulation applicable to such contravention could not reasonably be expected to result in a Material Adverse EffectOriginator, (iii3) any material contractual or limited partnership agreement restriction binding on or affecting such Originator or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv4) any material order, writ, judgment, award, injunction or decree binding on or affecting such Originator or its property, and (iv) do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than except for the transfer of such Originator’s interest in favor of the Buyer with respect Transferred Receivables pursuant to the Purchased Propertythis Agreement), ; and no transaction contemplated hereby by this Agreement requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator have each has been duly executed and delivered by a duly authorized officer of such Originator.
(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 such Originator of this Agreement or any other Originator Document document to be entered into by itdelivered hereunder, except (i) for the filing of UCC financing statements, all of statements which financing statements have been duly filed and, are referred to such Originator’s knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderherein.
(d) This Agreement and each other Originator Document Each of the Transaction Documents to be entered into by such Originator constitute which it is a party constitutes the legal, valid and binding obligation of such Originator enforceable against such Originator in accordance with their respective terms its terms, subject to bankruptcy bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors creditors’ rights generally and general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(ie) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer and assignment of the Transferred Receivables to the Buyer, enforceable against creditors of, and purchasers from, such Originator. Such Originator shall have no remaining property interest in any Transferred Receivable.
(f) The Authorized Representative has furnished to the Buyer and the Administrative Agent copies of the Parent’s audited consolidated balance sheet sheets of United Rentals and its Subsidiaries as at December 31, 2011the end of its most recent fiscal year, and the related audited consolidated statements of income and cash flow retained earnings of United Rentals and its Subsidiaries for such fiscal year, copies of which have been or will be furnished to the Buyer in accordance with Section 5.01(j) below, fairly present the financial condition of United Rentals and its Subsidiaries as at such date and the results of the operations of United Rentals and its Subsidiaries for the fiscal year of the Parent then period ended reported on by Deloitte & Touche LLP which financial statements present fairly in such date, all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011consistently applied, and since the results end of operations of the Parent and its consolidated subsidiaries for the most recent fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
(ii) Since December 31, 2011, (A) there has been no material adverse change has occurred in the business, assetsoperations, liabilitiesproperty or financial condition of United Rentals and its Subsidiaries.
(g) There is no pending or, to such Originator’s knowledge, threatened action or proceeding affecting such Originator before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect.
(f) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there is no material pending legal proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent or any of its subsidiaries is a party or of which any of their property is the subject, or (ii) that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivables. None of the Parent, CHS, any such Originator or the Collection Agent ability of such Originator to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement; such Originator is not in default with respect to any order of any court, arbitrator arbitration 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 and its subsidiaries taken as a wholesuch Originator.
(gh) No proceeds of any Purchase purchase will be used by such Originator to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(hi) Immediately prior to each Purchase hereunder, each Receivable to be sold hereunderEach Transferred Receivable, together with the Contract related thereto and the other Purchased Property relating theretoRelated Security, is owned (prior to its sale or contribution hereunder) by such the Originator free and clear of any Lien Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Buyer and any Permitted Liens), and . When the Buyer makes a purchase or receives a contribution of a Contributed Receivable it shall acquire all valid ownership of such Originator’s right, title each Transferred Receivable and interest in such Purchased Property and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, thereto free and clear of any Lien Adverse Claim (other than Permitted Liens referred to in clauses (b) and (d) any Adverse Claim arising solely as the result of any action taken by the Buyer); provided, that the interest of the definition Originators in Leased Equipment Receivables may be subject to the lien of the lessor thereof) except as created hereby; provided, further, that the interest of the Originators in Receivables that represent proceeds of the sale of equipment that has been leased to an Originator may be subject to the lien of the lessor thereof; provided, finally, that the right of any assignee of Receivables the obligor of which is a Government Obligor to enforce such Receivable directly against such obligor may be restricted by the Company under the Contribution Agreement (Federal Assignment of Claims Act or any similar applicable law to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such applicable Originator or Borrower and/or any assignee thereof shall not have complied with the Authorized Representativeapplicable provisions of any such law in connection with the assignment or subsequent reassignment of any such Receivable. No effective financing statement or other instrument similar in effect covering any Purchased Property shall at Contract or any time be Transferred Receivable, any interest therein, 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 Buyer relating to this Agreement or in favor of the Company under the Contribution Agreement (and those filed pursuant to the extent assigned to the Administrative Agent), Receivables Agreement and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative. The Purchases of the Purchased Property by the Buyer constitute valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property for security purposes), enforceable against creditors of the Buyers and no Purchased Property shall constitute property of such OriginatorPermitted Liens.
(ij) No Monthly Report (if prepared by the Collection Agent, such Originator or any of their respective Affiliates, or to the extent that information contained therein is supplied by the Collection Agent, such Originator or any such Affiliates)Each report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Authorized Representative or an Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate true, complete and accurate in any all material respect respects as of the its date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, Buyer at such time) as of the date so furnished or dated, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time madefurnished.
(jk) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, The principal place of business and chief executive office of the Originator and the office where such the Originator keeps all of its Records records concerning the Transferred Receivables are set forth on Schedule III hereto. As of located at the Closing Date, such Originator does not have any currently registered trade names, fictitious names, assumed names address or “doing business as” names or other names under which it is doing business, except as set forth on Schedule III.
(k) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Terminationaddresses referred to in Section 5.01(b).
(l) This Agreement Such Originator is not known by and does not use, nor has it been known by or used within the only agreement pursuant to which such Originator sells Receivables (other thanpast five years, prior to May 31, 2012, AccessOne Receivables)any tradename or doing-business-as name.
(m) The Purchase Price constitutes With respect to any programs used by the Originator in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent so that such new Collection Agent shall have the benefit of such programs (it being understood, however, that the Collection Agent, if other than United Rentals, shall be required to be bound by a confidentiality agreement reasonably equivalent value in consideration for the transfer acceptable to the Buyer Originators).
(n) All sales, excise or other taxes with respect to the merchandise, insurance or services which are the subject of any Contract for a Receivable have been paid by the Originator when due.
(o) The names and addresses of the Purchased Property Collection Account Banks and Controlled Account Bank, together with the account numbers of the Collection Accounts and the Controlled Account, are specified in Annex B (as the same may be updated from time to time pursuant to Section 5.01(g)).
(p) All right, title and interest of such OriginatorOriginator in and to, no such transfer shall have and exclusive dominion and control in respect of the Controlled Account has been made for or on account of an antecedent debt owed transferred by such Originator to the Buyer, or its designee, free and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law.
(n) Such Originator is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originator.
(o) Such Originator accounts for and otherwise treats each Purchase of Purchased Property hereunder in its books, records and financial statements as a legal sale of such Purchased Property, in each case to the extent other treatment is not required by GAAP.
(p) Such Originator has not (i) guaranteed or otherwise become liable for any obligation of the Company, allowed any of its other Affiliates to guarantee any obligations of the Company, and neither such Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company or actions with respect to the business and affairs of the Company, or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company and has not otherwise permitted any other of its Affiliates to commingle or pool any of its funds or other assets with those of the Company in a manner that would not allow such funds or other assets to be readily identifiable from those clear of any other Person. The Originators and the Company allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Fee (including the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered. Such Originator acknowledges that the Company, the Lenders, the Managing Agents and the Administrative Agent are entering into the transactions contemplated by the Contribution Agreement and the Loan Agreement in reliance upon the Company’s identity as a separate legal entity from each of the Parent, CHS, each Originator and each of their other respective AffiliatesAdverse Claim.
(q) Such Originator is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under United Rentals Northwest, Inc. represents and warrants that the Investment Company Act.
(r) Such Originator is not engaged, principally or UCC3 financing statements attached hereto as one of its important activities, Annex C have been submitted for filing in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amended). No part of the proceeds of any Purchased Property has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X.
(s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, appropriate filing office in the case State of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the BuyerOregon.
(t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect.
(u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded
Appears in 1 contract
Sources: Purchase and Contribution Agreement (United Rentals North America Inc)
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each of the Originators Originator represents and warrants as to itself as follows:
(a) Such Originator is either a corporation, a limited liability company or a limited partnership, duly incorporated or organized, an organization validly existing and in good standing under the laws of its the jurisdiction of incorporation or organization its organization, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effectqualified.
(b) The execution, delivery and performance by such Originator of this Agreement and all other Originator Documents each Transaction Document to be entered into by itwhich it is a party, including such Originator’s sale of Receivables and use of the proceeds of Purchases, (i) are within such Originator’s corporate, organizational or limited liability company or partnership powers, (ii) have been duly authorized by all necessary corporate, organizational or limited liability company or partnership action, (iii) do not contravene (i1) such Originator’s charter, charter or by-laws, limited liability company agreement laws or limited partnership agreement, (ii2) any Applicable Law except where law, rule or regulation applicable to such contravention could not reasonably be expected to result in a Material Adverse EffectOriginator, (iii3) any material contractual or limited partnership agreement restriction binding on or affecting such Originator or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv4) any material order, writ, judgment, award, injunction or decree binding on or affecting such Originator or its property, and (iv) do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than except for the transfer of such Originator’s interest in favor of the Buyer with respect Transferred Receivables pursuant to the Purchased Propertythis Agreement), ; and no transaction contemplated hereby by this Agreement requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator have each has been duly executed and delivered by a duly authorized officer of such Originator.
(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 such Originator of this Agreement or any other Originator Document document to be entered into by itdelivered hereunder, except (i) for the filing of UCC financing statements, all of statements which financing statements have been duly filed and, are referred to such Originator’s knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderherein.
(d) This Agreement and each other Originator Document Each of the Transaction Documents to be entered into by such Originator constitute which it is a party constitutes the legal, valid and binding obligation of such Originator enforceable against such Originator in accordance with their respective terms its terms, subject to bankruptcy bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors creditors’ rights generally and general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(ie) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer and assignment of the Transferred Receivables to the Buyer, enforceable against creditors of, and purchasers from, such Originator. Such Originator shall have no remaining property interest in any Transferred Receivable.
(f) The Authorized Representative has furnished to the Buyer and the Administrative Agent copies of the Parent’s audited consolidated balance sheet sheets of United Rentals and its Subsidiaries as at December 31, 2011the end of its most recent fiscal year, and the related audited consolidated statements of income and cash flow retained earnings of United Rentals and its Subsidiaries for such fiscal year, copies of which have been or will be furnished to the Buyer in accordance with Section 5.01(j) below, fairly present the financial condition of United Rentals and its Subsidiaries as at such date and the results of the operations of United Rentals and its Subsidiaries for the fiscal year of the Parent then period ended reported on by Deloitte & Touche LLP which financial statements present fairly in such date, all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011consistently applied, and since the results end of operations of the Parent and its consolidated subsidiaries for the most recent fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
(ii) Since December 31, 2011, (A) there has been no material adverse change has occurred in the business, assetsoperations, liabilitiesproperty or financial condition of United Rentals and its Subsidiaries.
(g) There is no pending or, to such Originator’s knowledge, threatened action or proceeding affecting such Originator before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect.
(f) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there is no material pending legal proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent or any of its subsidiaries is a party or of which any of their property is the subject, or (ii) that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivables. None of the Parent, CHS, any such Originator or the Collection Agent ability of such Originator to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement; such Originator is not in default with respect to any order of any court, arbitrator arbitration 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 and its subsidiaries taken as a wholesuch Originator.
(gh) No proceeds of any Purchase purchase will be used by such Originator to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(hi) Immediately prior to each Purchase hereunder, each Receivable to be sold hereunderEach Transferred Receivable, together with the Contract related thereto and the other Purchased Property relating theretoRelated Security, is owned (prior to its sale or contribution hereunder) by such the Originator free and clear of any Lien Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Buyer and any Permitted Liens), and . When the Buyer makes a purchase or receives a contribution of a Contributed Receivable it shall acquire all valid ownership of such Originator’s right, title each Transferred Receivable and interest in such Purchased Property and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, thereto free and clear of any Lien Adverse Claim (other than Permitted Liens referred to in clauses (b) and (d) any Adverse Claim arising solely as the result of any action taken by the Buyer); provided, that the interest of the definition Originators in Leased Equipment Receivables may be subject to the lien of the lessor thereof) except as created hereby; provided, further, that the interest of the Originators in Receivables that represent proceeds of the sale of equipment that has been leased to an Originator may be subject to the lien of the lessor thereof; provided, finally, that the right of any assignee of Receivables the obligor of which is a Government Obligor to enforce such Receivable directly against such obligor may be restricted by the Company under the Contribution Agreement (Federal Assignment of Claims Act or any similar applicable law to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such applicable Originator or Borrower and/or any assignee thereof shall not have complied with the Authorized Representativeapplicable provisions of any such law in connection with the assignment or subsequent reassignment of any such Receivable. No effective financing statement or other instrument similar in effect covering any Purchased Property shall at Contract or any time be Transferred Receivable, any interest therein, 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 Buyer relating to this Agreement or in favor of the Company under the Contribution Agreement (and those filed pursuant to the extent assigned to the Administrative Agent), Receivables Agreement and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative. The Purchases of the Purchased Property by the Buyer constitute valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property for security purposes), enforceable against creditors of the Buyers and no Purchased Property shall constitute property of such OriginatorPermitted Liens.
(ij) No Monthly Report (if prepared by the Collection Agent, such Originator or any of their respective Affiliates, or to the extent that information contained therein is supplied by the Collection Agent, such Originator or any such Affiliates)Each report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Authorized Representative or an Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate true, complete and accurate in any all material respect respects as of the its date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, Buyer at such time) as of the date so furnished or dated, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time madefurnished.
(jk) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, The principal place of business and chief executive office of the Originator and the office where such the Originator keeps all of its Records records concerning the Transferred Receivables are set forth on Schedule III hereto. As of located at the Closing Date, such Originator does not have any currently registered trade names, fictitious names, assumed names address or “doing business as” names or other names under which it is doing business, except as set forth on Schedule III.
(k) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Terminationaddresses referred to in Section 5.01(b).
(l) This Agreement Such Originator is not known by and does not use, nor has it been known by or used within the only agreement pursuant to which such Originator sells Receivables (other thanpast five years, prior to May 31, 2012, AccessOne Receivables)any tradename or doing-business-as name.
(m) The Purchase Price constitutes With respect to any programs used by the Originator in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent so that such new Collection Agent shall have the benefit of such programs (it being understood, however, that the Collection Agent, if other than United Rentals, shall be required to be bound by a confidentiality agreement reasonably equivalent value in consideration for the transfer acceptable to the Buyer Originators).
(n) All sales, excise or other taxes with respect to the merchandise, insurance or services which are the subject of any Contract for a Receivable have been paid by the Originator when due.
(o) The names and addresses of all the Controlled Account Banks, together with the account numbers of the Purchased Property Controlled Accounts at such Controlled Account Banks, are specified in Annex B (as the same may be updated from time to time pursuant to Section 5.01(g)).
(p) All right, title and interest of such OriginatorOriginator in and to, no such transfer shall have and exclusive dominion and control in respect of each Controlled Account has been made for or on account of an antecedent debt owed transferred by such Originator to the Buyer, or its designee, free and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law.
(n) Such Originator is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originator.
(o) Such Originator accounts for and otherwise treats each Purchase of Purchased Property hereunder in its books, records and financial statements as a legal sale of such Purchased Property, in each case to the extent other treatment is not required by GAAP.
(p) Such Originator has not (i) guaranteed or otherwise become liable for any obligation of the Company, allowed any of its other Affiliates to guarantee any obligations of the Company, and neither such Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company or actions with respect to the business and affairs of the Company, or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company and has not otherwise permitted any other of its Affiliates to commingle or pool any of its funds or other assets with those of the Company in a manner that would not allow such funds or other assets to be readily identifiable from those clear of any other Person. The Originators and the Company allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Fee (including the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered. Such Originator acknowledges that the Company, the Lenders, the Managing Agents and the Administrative Agent are entering into the transactions contemplated by the Contribution Agreement and the Loan Agreement in reliance upon the Company’s identity as a separate legal entity from each of the Parent, CHS, each Originator and each of their other respective AffiliatesAdverse Claim.
(q) Such Originator is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under the Investment Company Act.
(r) Such Originator is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amended). No part of the proceeds of any Purchased Property has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X.
(s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, in the case of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the Buyer.
(t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect.
(u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded
Appears in 1 contract
Sources: Purchase Agreement (United Rentals North America Inc)
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS. Each of the Originators Originator represents and warrants as to itself as follows:
(a) Such Originator is either a corporation, a limited liability company or a limited partnership, duly incorporated or organized, an organization validly existing and in good standing under the laws of its the jurisdiction of incorporation or organization its organization, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, except where the failure to do be so could qualified or in good standing would not reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by such Originator of this Agreement and all other Originator Documents each Transaction Document to be entered into by itwhich it is a party, including such Originator’s sale of Receivables and use of the proceeds of Purchases, (i) are within such Originator’s corporate, organizational or limited liability company or partnership powers, (ii) have been duly authorized by all necessary corporate, organizational or limited liability company or partnership action, (iii) do not contravene (i1) such Originator’s charter, charter or by-laws, limited liability company agreement laws or limited partnership agreement, (ii2) any Applicable Law except where law, rule or regulation applicable to such contravention could not reasonably be expected to result in a Material Adverse EffectOriginator, (iii3) any material contractual or limited partnership agreement restriction binding on or affecting such Originator or its property other than such restrictions that property, the violation of which could not reasonably be expected to adversely affect have a Material Adverse Effect on the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer collectibility of the Receivables and Collections thereon, in any Immaterial Respect, outstanding Receivable or a Material Adverse Effect on such Originator or (iv4) any material order, writ, judgment, award, injunction or decree binding on or affecting such Originator or its property, and (iv) do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than except for the transfer of such Originator’s interest in favor of the Buyer with respect Transferred Receivables pursuant to the Purchased Propertythis Agreement), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Originator Document to be entered into by such Originator have each has been duly executed and delivered by a duly authorized officer of such Originator.
(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 such Originator of this Agreement or any other Originator Document document to be entered into by itdelivered hereunder, except (i) for the filing of UCC financing statements, all statements which are referred to herein other than those which have been obtained; provided that the right of any assignee of a Receivable the obligor of which financing statements have been duly filed and, is a Government Obligor to enforce such Originator’s knowledge, are in full force and effect, (ii) Receivable directly against such as have been made obligor may be restricted by the Federal Assignment of Claims Act or obtained and are in full force and effect and (iii) where any similar applicable Law to the failure to make or obtain could not reasonably be expected to adversely affect such Originator’s ability to perform its material obligations hereunder extent the Originator or the ability to assign Buyer shall not have complied with the applicable provisions of any such law in connection with the assignment or collect the Receivables hereundersubsequent reassignment of any such Receivable.
(d) This Agreement and each other Originator Document Each of the Transaction Documents to be entered into by such Originator constitute which it is a party constitutes the legal, valid and binding obligation of such Originator enforceable against such Originator in accordance with their respective terms its terms, subject to bankruptcy bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors creditors’ rights generally and general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(ie) Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer and assignment of the Transferred Receivables to the Buyer, enforceable against creditors of, and purchasers from, such Originator. Such Originator shall have no remaining property interest in any Transferred Receivable.
(f) The Authorized Representative has furnished to the Buyer and the Administrative Agent copies of the Parent’s audited consolidated balance sheet sheets of United Rentals and its Subsidiaries as at December 31, 2011the end of its most recent fiscal year, and the related audited consolidated statements of income and cash flow retained earnings of United Rentals and its Subsidiaries for such fiscal year, copies of which have been or will be furnished to the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements Buyer in accordance with Section 5.01(i) below, fairly present fairly in all material respects the consolidated financial condition of United Rentals and its Subsidiaries as at such date and the consolidated results of the operations of United Rentals and its Subsidiaries for the period ended on such date, all in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011consistently applied, and since the results end of operations of the Parent and its consolidated subsidiaries for the most recent fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
(ii) Since December 31, 2011, (A) there has been no material adverse change has occurred in the business, assetsoperations, liabilitiesproperty or financial condition of United Rentals and its Subsidiaries, except as may have previously been disclosed to the Buyer.
(g) There is no pending or, to such Originator’s knowledge, threatened action or proceeding affecting such Originator before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect.
(f) Except as disclosed in the periodic and other reports, proxy statements and other materials filed with or publicly furnished to the U.S. Securities Exchange Commission by the Parent and its subsidiaries prior to the date hereof, there is no material pending legal proceeding (i) other than ordinary routine litigation incidental to the business, to which the Parent or any of its subsidiaries is a party or of which any of their property is the subject, or (ii) that could reasonably be expected to impair any material rights, remedies or benefit that otherwise would be available to the Buyer, the Collection Agent or the Administrative Agent to obtain Collections on the Receivables. None of the Parent, CHS, any such Originator or the Collection Agent ability of such Originator to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement; such Originator is not in default with respect to any order of any court, arbitrator arbitration 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 and its subsidiaries taken as a wholesuch Originator.
(gh) No proceeds of any Purchase purchase will be used by such Originator to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended or in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(hi) Immediately prior to each Purchase hereunder, each Receivable to be sold hereunderEach Transferred Receivable, together with the Contract related thereto and the other Purchased Property relating theretoRelated Security, is owned (prior to its sale or contribution hereunder) by such the Originator free and clear of any Lien Adverse Claim (other than Permitted Liensany Adverse Claim arising solely as the result of any action taken by the Buyer), and . When the Buyer makes a purchase or receives a contribution of a Contributed Receivable it shall acquire all valid ownership of such Originator’s right, title each Transferred Receivable and interest in such Purchased Property and a valid and perfected first priority ownership interest in each such Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, thereto free and clear of any Lien Adverse Claim (other than Permitted Liens referred to in clauses (b) and (d) any Adverse Claim arising solely as the result of any action taken by the Buyer); provided, that the interest of the definition Originators in Receivables that represent proceeds of the sale of equipment that has been leased to an Originator may be subject to the lien of the lessor thereof) except as created hereby; provided, further, that the right of any assignee of Receivables the obligor of which is a Government Obligor to enforce such Receivable directly against such obligor may be restricted by the Company under the Contribution Agreement (Federal Assignment of Claims Act or any similar applicable law to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of such applicable Originator or Borrower and/or any assignee thereof shall not have complied with the Authorized Representativeapplicable provisions of any such law in connection with the assignment or subsequent reassignment of any such Receivable. No effective financing statement or other instrument similar in effect covering any Purchased Property shall at Contract or any time be Transferred Receivable, any interest therein, the Related Security or Collections with respect thereto is on file in any recording office office, except such as may be filed those tiled in favor of the Buyer relating to this Agreement or in favor of the Company under the Contribution Agreement (and those filed pursuant to the extent assigned to the Administrative Agent), and by the Administrative Agent under the Loan Receivables Agreement; provided that any Originator (acting directly or through the Authorized Representative) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without consent of such Originator or the Authorized Representative. The Purchases of the Purchased Property by the Buyer constitute valid and true sales and transfers for consideration (and not merely a pledge of such Purchased Property for security purposes), enforceable against creditors of the Buyers and no Purchased Property shall constitute property of such Originator.
(ij) No Monthly Report (if prepared by the Collection Agent, such Originator or any of their respective Affiliates, or to the extent that information contained therein is supplied by the Collection Agent, such Originator or any such Affiliates)Each report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Authorized Representative or an Originator to the Buyer (or its assigns) in connection with this Agreement is or will be inaccurate true, complete and accurate in any all material respect respects as of the its date it is or shall be dated or (except as otherwise disclosed to the Buyer, as the case may be, Buyer at such time) as of the date so furnished or dated, 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; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, such Originator represents only that it acted in good faith and utilized assumptions that such Originator believed to be reasonable at the time madefurnished.
(jk) Such Originator’s correct legal name, jurisdiction of incorporation or formation, organizational identification number, The principal place of business and chief executive office of the Originator and the office where such the Originator keeps all of its Records records concerning the Transferred Receivables are set forth on Schedule III hereto. As of located at the Closing Date, such Originator does not have any currently registered trade names, fictitious names, assumed names address or “doing business as” names or other names under which it is doing business, except as set forth on Schedule III.
(k) No event or circumstance has occurred and is continuing, or would result from any Purchase hereunder or from the application of the proceeds therefrom, which constitutes an Event of Terminationaddresses referred to in Section 5.01(b).
(l) This Agreement Such Originator is not known by and does not use, nor has it been known by or used within the only agreement pursuant to which such Originator sells Receivables (other thanpast five years, prior to May 31, 2012, AccessOne Receivables)any tradename or doing-business-as name.
(m) The Purchase Price constitutes With respect to any programs used by the Originator in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent so that such new Collection Agent shall have the benefit of such programs (it being understood, however, that the Collection Agent, if other than United Rentals, shall be required to be bound by a confidentiality agreement reasonably equivalent value in consideration for the transfer acceptable to the Buyer Originators).
(n) All sales, excise or other taxes with respect to the merchandise, insurance or services which are the subject of any Contract for a Receivable have been paid by the Originator when due.
(o) The names and addresses of the Purchased Property Collection Account Banks and Controlled Account Bank, together with the account numbers of the Collection Accounts and the Controlled Account, are specified in Annex B (as the same may be updated from time to time pursuant to Section 5.01(g)).
(p) All right, title and interest of such OriginatorOriginator in and to, no such transfer shall have and exclusive dominion and control in respect of the Controlled Account has been made for or on account of an antecedent debt owed transferred by such Originator to the Buyer, or its designee, free and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law.
(n) Such Originator is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) and at the time of (and immediately after) each Purchase hereunder, such Originator shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. Such Originator will not become an insolvent person or be put in insolvent circumstances within the meaning of the Bankruptcy Law by entering into, or immediately after completion of the transactions contemplated by, this Agreement. The transfers of Purchased Property by such Originator to the Buyer pursuant to this Agreement, and all other transactions between such Originator and the Buyer, have been and will be made in good faith and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against such Originator.
(o) Such Originator accounts for and otherwise treats each Purchase of Purchased Property hereunder in its books, records and financial statements as a legal sale of such Purchased Property, in each case to the extent other treatment is not required by GAAP.
(p) Such Originator has not (i) guaranteed or otherwise become liable for any obligation of the Company, allowed any of its other Affiliates to guarantee any obligations of the Company, and neither such Originator nor any of its other Affiliates has held itself out as responsible for debts of the Company or actions with respect to the business and affairs of the Company, or (ii) permitted the commingling or pooling of its funds or other assets with those of the Company and has not otherwise permitted any other of its Affiliates to commingle or pool any of its funds or other assets with those of the Company in a manner that would not allow such funds or other assets to be readily identifiable from those clear of any other Person. The Originators and the Company allocate between themselves shared corporate operating services and expenses which are not reflected in the Servicing Fee (including the services of shared employees, consultants and agents and reasonable legal and auditing expenses) on the basis of the reasonably projected use or the projected value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered. Such Originator acknowledges that the Company, the Lenders, the Managing Agents and the Administrative Agent are entering into the transactions contemplated by the Contribution Agreement and the Loan Agreement in reliance upon the Company’s identity as a separate legal entity from each of the Parent, CHS, each Originator and each of their other respective AffiliatesAdverse Claim.
(q) Such Originator is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under the Investment Company Act.
(r) Such Originator is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the Securities Exchange Act of 1934, as amended). No part of the proceeds of any Purchased Property has been used for so purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X.
(s) Such Originator and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Collection Agent and/or such Originator to account for the Purchased Property to the extent necessary to administer the Purchased Property, and, in the case of such Originator and the Collection Agent, to assign (by way of sale) or sublicense such rights to use all of such software to the Buyer.
(t) Such Originator has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, (i) the validity of which are being contested in good faith by appropriate proceedings and with respect to which such Originator has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP or (ii) which the failure to pay could not reasonably be expected to have a Material Adverse Effect.
(u) Except as could not reasonably be expected to result in material liability to an Originator, such Originator and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of such Originator or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for funding purposes) did not, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such amount that would reasonably be expected to result in a funding obligation that could reasonably be expected to result in a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on the assumptions used for funding purposes) did not, as of the last annual valuation dates applicable thereto, exceed the fair market value of the assets of all such underfunded
Appears in 1 contract
Sources: Purchase and Contribution Agreement (United Rentals Inc /De)