REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that: (a) the Bank is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act; (b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware); (e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware; (f) there are no proceedings pending or, to the best of each of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board or
Appears in 2 contracts
Sources: Trust Agreement (Cna Financial Capital Iii), Trust Agreement (Cna Financial Capital Iii)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Bank Issuerthe Issuer is a national banking association duly organized, validly corporation incorporated and existing and in good standing under the laws of the United Statesjurisdiction in which it is incorporated; The Bank (Delaware) is a Delaware banking corporation duly organizedthe execution and delivery of, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it the Issuer of this Trust Agreement;
(c) Subscription Agreement has been authorized by all necessary corporate action on the part of the Issuer; this Trust Subscription Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) Issuer and constitutes the a legal, valid and legally binding agreement of the Bank and the Bank (Delaware) Issuer enforceable against it in accordance with its terms; the Issuer s of Alberta, subject Nova Scotia, Ontario and British Columbia and is in compliance with its obligations under the Applicable Securities Laws in all material respects; the Issuer has the power and authority to bankruptcycreate, insolvencyissue and deliver the Purchased Securities and perform its obligations under the Purchased Securities; the Issuer has complied, fraudulent transferor will comply, reorganizationwith all Applicable Securities Laws in connection with the issuance of the Purchased Securities; no approval, moratorium authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required by the Issuer in connection with the execution and delivery or with the performance by the Issuer of this Subscription Agreement except in compliance with the Applicable Securities Laws and the requirements of the Exchange; and Neither the Issuer, nor any partner, director, or officer or any person directly or indirectly controlling, controlled by D or any similar laws disqualification provision. 8.MiscellaneousThe Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber, including any fees and disbursements of general applicability any special counsel retained by the Subscriber, relating to the purchase, resale or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each transfer of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware)Purchased Securities, respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the authorization, execution or delivery shall be borne by the Bank Subscriber. Except as expressly provided for in this subscription and in any agreements, instruments and other documents contemplated or provided for herein, this subscription contains the Bank (Delaware) of this Trust Agreement nor entire agreement between the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action parties with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers sale of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) Purchased Securities and there are no proceedings pending orother terms, conditions, representations, warranties, acknowledgments and agreements, whether expressed or implied, whether written or oral, and whether made by the parties hereto or anyone else. This subscription may only be amended by instrument in writing signed by the parties hereto. Notwithstanding the foregoing, the Subscriber is not waiving any remedies or protections available by statute or common law in connection with this Agreement or the transactions contemplated hereby. Each party to this subscription covenants that it will, from time to time both before and after the Closing, at the request and expense of the requesting party, promptly execute and deliver all such other notices, certificates, undertakings, escrow agreements and other instruments and documents, and shall do all such other acts and other things, as may be necessary or desirable for purposes of carry out the provisions of this subscription. The invalidity, illegality or unenforceability of any particular provision of this subscription shall not affect or limit the validity, legality or enforceability of the remaining provisions of this subscription. This subscription, including without limitation the terms, conditions, representations, warranties, acknowledgments and agreements contained herein, shall survive and continue in full force and effect and be binding upon the Subscriber and the Issuer notwithstanding the completion of the purchase and sale of the Purchased Securities, the conversion or exercise of any Purchased Securities and any subsequent disposition thereof by the Subscriber. This subscription is not transferable or assignable. This subscription shall enure to the best benefit of each of and be binding upon the Bank's parties hereto and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orits respective successors and permitted assigns. 71646146.1
Appears in 1 contract
Sources: Convertible Debenture Subscription Agreement (Grown Rogue International Inc.)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). PURCHASER The Bank Purchaser and the Bank (Delaware), each severally on behalf of and as to itself, Canadian Purchaser hereby represents and warrants for to the benefit Sellers as follows: Organization, Authority and Qualification of the Depositor and the Securityholders that:
(a) the Bank Purchaser. The Purchaser is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; Washington and has all necessary corporate power and authority to enter into this Agreement and the other Transaction Documents to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The Bank (Delaware)execution and delivery by the Purchaser of this Agreement and the other Transaction Documents to which it is a party, as Delaware Trustee, fulfills for the trust performance by the statutory requirements Purchaser of Section 3807 its obligations hereunder and thereunder and the consummation by the Purchaser of the Delaware Business Trust Act;
(b) each of the Bank transactions contemplated hereby and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has thereby have been duly authorized by all necessary corporate or other requisite action on the part of the Bank and the Bank (Delaware), respectivelyPurchaser. This Agreement has been, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such upon their execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument Transaction Documents to which the Bank or the Bank (Delaware) TrusteePurchaser is a party, as the case may will be, is a party or duly executed and delivered by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the Purchaser. Assuming due authorization, execution or and delivery by the Bank or the Bank (Delaware) of Sellers, this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval ofconstitutes, the giving of notice toand upon their execution, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's other Transaction Documents to which the Purchaser is a party, will constitute, a legal, valid and binding obligation of the Bank's (Delaware) knowledgePurchaser, threatened enforceable against the Purchaser in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the Bank effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity). No Conflict. Assuming that all consents, approvals, authorizations and other actions described in Section 5.3 or set forth in Section 8.1(b) of the Bank (DelawareSellers Disclosure Schedule have been obtained, all filings and notifications described in Section 5.3 or set forth in Section 8.1(b) in of the Sellers Disclosure Schedule have been made, any court applicable waiting period has expired or before any governmental authority, agency or arbitration board orbeen
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' ’ rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's ’s or the Bank's ’s (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's ’s and the Bank's ’s (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board oror tribunal which, individually or in the aggregate, would materially and adversely affect the Trust or would question the right, power and authority of the Bank or the Bank (Delaware), as the case may be, to enter into or perform its obligations as one of the Trustees under this Trust Agreement.
Appears in 1 contract
Sources: Trust Agreement (Cna Financial Corp)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board oror tribunal which, individually or in the aggregate, would materially and adversely affect the Trust or would question the right, power and authority of the Bank or the Bank (Delaware), as the case may be, to enter into or perform its obligations as one of the Trustees under this Trust Agreement.
Appears in 1 contract
Sources: Trust Agreement (Cna Financial Corp)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Bank The Borrower is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; Ohio. Each Guarantor is a corporation duly organized, validly existing and The Bank (Delaware), as Delaware Trustee, fulfills for in good standing under the trust the statutory requirements of Section 3807 laws of the Delaware Business Trust Act;jurisdiction of its organization.
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the The execution, delivery and performance by the Borrower and each Guarantor of the Loan Documents to which it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed is a party and which are delivered by the Bank hereunder and the Bank (Delaware) and constitutes the valid and legally binding agreement consummation of the Bank transactions contemplated hereby and thereby, are within the Bank (Delaware) enforceable against it in accordance with its termsBorrower's or such Guarantor's corporate powers, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has have been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectivelyaction, and do not require contravene (i) the Borrower's or such Guarantor's charter, regulations or by-laws, as applicable, or (ii) law or any contractual restriction binding on or affecting the Borrower or such Guarantor.
(c) No authorization or approval of stockholders of or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the Bank or the Bank (Delaware) and such due execution, delivery and performance will not (i) violate by the Bank's Borrower or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse Guarantor of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument Loan Document to which it is a party, except for those authorizations, approvals, actions, notices and filings listed on Schedule 4.01(c) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect.
(d) This Agreement has been, and each of the Bank or other Loan Documents to which it is a party, will have been, duly executed and delivered by the Bank (Delaware) TrusteeBorrower. The Guarantee Agreement has been duly executed and delivered by each Guarantor. This Agreement and the Guarantee Agreement are, and each of the other Loan Documents, when delivered hereunder, will be, the legal, valid and binding obligation of the Borrower and each Guarantor party thereto, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of enforceable against the United States or the State of DelawareBorrower and such Guarantor, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);accordance with their respective terms.
(e) neither The Consolidated balance sheet of the authorizationBorrower and its Subsidiaries as at December 28, execution or delivery 1996, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, accompanied by an opinion of Coopers & Lybrand, L.L.P., ind▇▇▇▇▇▇▇t public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 22, 1997, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any chief financial officer of the transactions by the Bank or the Bank (Delaware) (as Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case may be) contemplated herein requires of said balance sheet as at March 22, 1997, and said statements of income and cash flows for the consent or approval ofthree months then ended, to year-end audit adjustments, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers Consolidated financial condition of the Bank or Borrower and its Subsidiaries as at such dates and the Bank (Delaware), as appropriate in context, under the laws Consolidated results of the United States or operations of the State of Delaware;Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 28, 1996, there has been no Material Adverse Change.
(f) there are There is no proceedings pending oror threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the best of each legality, validity or enforceability of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank Loan Documents or the Bank consummation of the transactions contemplated hereby and thereby.
(Delawareg) Neither the Borrower nor any Guarantor is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any court Advance or before of any governmental authorityLetter of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) Neither the Borrower nor any Guarantor is (i) an "investment company", agency within the meaning of the Investment Company Act of 1940, as amended or arbitration board or(ii) a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended.
Appears in 1 contract
Sources: Credit Agreement (Kroger Co)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). Company The Bank Company represents, warrants and covenants to the Bank (Delaware), each severally on behalf of and Purchaser that as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders thatrelated Closing Date or as of such date specifically provided herein:
(a) the Bank The Company is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; New Jersey and The Bank (Delaware)is qualified to transact business in, as Delaware Trusteeis in good standing under the laws of, fulfills and possesses all licenses necessary for the trust conduct of its business in, each state in which any Mortgaged Property is located or is otherwise exempt or not required under applicable law to effect such qualification or license and no demand for such qualification or license has been made upon the statutory requirements Company by any such state, and in any event the Company is in compliance with the laws of Section 3807 each such State to the extent necessary to ensure the enforceability of each Mortgage Loan and the servicing of the Delaware Business Trust ActMortgage Loans in accordance with the terms of this Agreement;
(b) The Company has full power and authority to hold each of the Bank Mortgage Loan, to sell each Mortgage Loan pursuant to this Agreement and the Bank (Delaware) has full corporate power, authority related Term Sheet and legal right to execute, deliver and perform its obligations under perform, and to enter into and consummate all transactions contemplated by this Trust Agreement and to conduct its business as presently conducted, has taken all necessary action to authorize duly authorized the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement , has been duly authorized, executed and delivered by the Bank this Agreement and the Bank (Delaware) related Term Sheet, and this Agreement, the related Term Sheet and each Assignment of Mortgage to the Purchaser constitutes the a legal, valid and legally binding agreement obligation of the Bank and the Bank (Delaware) Company, enforceable against it in accordance with its terms, terms subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium bankruptcy laws and other similar laws of general applicability relating application affecting rights of creditors and subject to or affecting creditors' rights and to general equity principlesthe application of the rules of equity, including those respecting the availability of specific performance;
(dc) the execution, delivery and performance by each None of the Bank execution and delivery of this Agreement, the origination of the Mortgage Loans by the Company, the sale of the Mortgage Loans to the Purchaser pursuant to the related Term Sheet, the consummation of the transactions contemplated thereby and hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part related Term Sheet will conflict with any of the Bank and the Bank (Delaware)terms, respectively, and do not require any approval of stockholders conditions or provisions of the Bank Company's charter or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's by-laws or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, materially conflict with or without notice or lapse of time, a default under, or result in a material breach of any of the creation terms, conditions or imposition of, provisions of any Lien on legal restriction or any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, Company is now a party or by which it is bound, or (iii) violate constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, governmental rule or regulation of the United States or the State of Delawarerule, as the case may beregulation, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to which the Company or its property is subject;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Bank Purchaser or its assignee for each Mortgage Loan have been, on or before the related Closing Date, delivered to the Custodian or the Bank (Delaware)Purchaser or its assignees;
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are There is no proceedings litigation pending or, to the best of each of the BankCompany's and the Bank's (Delaware) knowledge, threatened against with respect to the Company which is reasonably likely to have a material adverse effect on the sale of the related Mortgage Loans, the execution, delivery or affecting the Bank enforceability of this Agreement or the Bank related Term Sheet, or which is reasonably likely to have a material adverse effect on the financial condition of the Company;
(Delawaref) in No consent, approval, authorization or order of any court or before any governmental authority, agency or arbitration board orbody is required for the execution, delivery and performance by the Company of or compliance by the Company with this Agreement or the related Term Sheet, the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement or the related Term Sheet except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement and the related Term Sheet is in the ordinary course of business of the Company, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Company pursuant to this Agreement and the related Term Sheet are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(h) The origination, collection and servicing practices used by the Company, with respect to each Mortgage Note and Mortgage have been in all material respects legal, proper and prudent in the mortgage origination and servicing business. With respect to escrow deposits and payments that the Company collects, all such payments are in the possession of, or under the control of, the Company, and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. No escrow deposits or other charges or payments due under the Mortgage Note have been capitalized under any Mortgage or the related Mortgage Note;
(i) The Company used no selection procedures that identified the related Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in the Company's portfolio at the related Cut-off Date;
(j) The Company will treat the sale of the related Mortgage Loans to the Purchaser as a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) The Company is an approved seller/servicer of residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Company is in good standing to sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and no event has occurred which would make the Company unable to comply with eligibility requirements or which would require notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(l) The Company does not believe, nor does it have any cause or reason to believe, that it cannot perform each and every covenant contained in this Agreement and the related Term Sheet; and
(m) No statement, report or other document prepared and furnished or to be prepared and furnished by the Company pursuant to the Agreement or the related Term Sheet contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE)Borrower. The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby Borrower represents and warrants for the benefit of the Depositor and the Securityholders thatas follows:
(a) the Bank The Borrower is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; Ohio. Each Guarantor is a corporation duly organized, validly existing and The Bank (Delaware), as Delaware Trustee, fulfills for in good standing under the trust the statutory requirements of Section 3807 laws of the Delaware Business Trust Act;jurisdiction of its organization.
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the The execution, delivery and performance by it the Borrower and each Guarantor of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes Notes, if any, delivered hereunder, in the valid and legally binding agreement case of the Bank Borrower, or the Guarantee Agreement, in the case of each Guarantor, and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each consummation of the Bank and transactions contemplated hereby, are within the Bank (Delaware) of this Trust Agreement has Borrower's or such Guarantor's corporate powers, have been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectivelyaction, and do not require contravene (i) the Borrower's or such Guarantor's charter, regulations or by-laws, as applicable, or (ii) law or any contractual restriction binding on or affecting the Borrower or such Guarantor.
(c) No authorization or approval of stockholders of or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the Bank or the Bank (Delaware) and such due execution, delivery and performance will not (i) violate by the Bank's Borrower of this Agreement or the Bank's (Delaware) Charter or By-lawsNotes, (ii) violate any provision ofif any, delivered hereunder, or constituteby any Guarantor of the Guarantee Agreement, with except for those authorizations, approvals, actions, notices and filings listed on Schedule4.01(c) hereto, all of which have been duly obtained, taken, given or without notice or lapse made and are in full force and effect.
(d) This Agreement has been, and each of timethe Notes, a default underif any, or result in will have been, duly executed and delivered by the creation or imposition ofBorrower. The Guarantee Agreement has been duly executed and delivered by each Guarantor. This Agreement and the Guarantee Agreement are, any Lien on any properties included in and each of the Trust Property pursuant to Notes, when delivered hereunder, will be, the provisions oflegal, any indenture, mortgage, credit agreement, license or other agreement or instrument to which valid and binding obligation of the Bank or the Bank (Delaware) Trustee, Borrower and each Guarantor party thereto,as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of enforceable against the United States or the State of Delaware, Borrower and such Guarantor,as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);accordance with their respective terms.
(e) neither The Consolidated balance sheet of the authorizationBorrower and its Subsidiaries as at December 28, execution or delivery 1996, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, accompanied by an opinion of Coopers & Lybrand, L.L.P., inde▇▇▇▇▇▇▇ public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 22, 1997, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any chief financial officer of the transactions by the Bank or the Bank (Delaware) (as Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case may be) contemplated herein requires of said balance sheet as at March 22, 1997, and said statements of income and cash flows for the consent or approval ofthree months then ended, to year-end audit adjustments, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers Consolidated financial condition of the Bank or Borrower and its Subsidiaries as at such dates and the Bank (Delaware), as appropriate in context, under the laws Consolidated results of the United States or operations of the State of Delaware;Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 28, 1996, there has been no Material Adverse Change.
(f) there are There is no proceedings pending oror threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the best legality, validity or enforceability of each this Agreement or any Note or the consummation of the Bank's transactions contemplated hereby.
(g) Neither the Borrower nor any Guarantor is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the Bank's purpose of purchasing or carrying any margin stock.
(Delawareh) knowledgeNeither the Borrower nor any Guarantor is (i) an "investment company", threatened against within the meaning of the Investment Company Act of 1940, as amended or affecting (ii) a "holding company" as defined in, or subject to regulation under, the Bank or the Bank (Delaware) in any court or before any governmental authorityPublic Utility Holding Company Act of 1935, agency or arbitration board oras amended.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Kroger Co)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank Macquarie Parties and the Bank (Delaware), each severally on behalf of and as to itself, hereby Issuer Trustee. ----------------------------------------------------------------------
I. The Issuer Trustee represents and warrants for to each Underwriter and the benefit Macquarie Parties as of the Depositor date of this Agreement and as of the Closing Date, and agrees with each Underwriter and the Securityholders Macquarie Parties, that:
(a) since the Bank respective dates as of which information is provided in the Registration Statement and the Prospectus, there has not been any material adverse change or any development involving a national banking association prospective material adverse change in or affecting the general affairs, business, prospects, management, results of operations, or condition (financial or otherwise) of the Issuer Trustee except as disclosed in the Prospectus, which is material in the context of the Issuer Trustee performing its obligations and duties under the Class A Notes and each Basic Document to which it is or is to be a party;
(b) it has been duly organized, incorporated and is validly existing as a corporation under the laws of the Commonwealth of Australia, with the power and authority (corporate and other) to conduct its business as described in the Prospectus and to issue the Class A Notes and to act as required by each Basic Document to which it is or is to be a party and by law to comply with the requirements of any legislation and subordinate legislation (including, without limitation and to the extent relevant, any Consumer Credit Code) and no other thing is required to be done by the Issuer Trustee (including without limitation the making of any filing or registration) in order to issue the Class A Notes or to execute and act as required by each Basic Document to which it is or is to be a party;
(c) it has been duly qualified for the transaction of business and is in good standing under the laws of each other jurisdiction in which it conducts any business so as to require such qualification, other than where the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing failure to be so qualified and in good standing under would not have a material adverse effect on the laws of transactions contemplated herein or in the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust ActBasic Documents;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(cd) this Trust Agreement has been duly authorized, executed and delivered by the Bank Issuer Trustee;
(e) the Class A Notes have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, they will have been duly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Issuer Trustee, entitled to the benefits provided by the Note Trust Deed and the Bank (Delaware) Security Trust Deed, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws or general principles affecting the enforcement of creditors rights generally and constitutes to general equitable principles. The execution, delivery and performance by the Issuer Trustee of each of the Basic Documents to which it either is, or is to be, a party and this Agreement has been duly authorized by the Issuer Trustee, and, when executed and delivered by it and, each of the other parties thereto, each of the Basic Documents will constitute a legal, valid and legally binding agreement obligation of the Bank and the Bank (Delaware) Issuer Trustee, enforceable against it in accordance with its terms, subject as to enforceability to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and conservatorship, receivership, liquidation or other similar laws or general principles affecting the enforcement of general applicability relating to or affecting creditors' creditors rights generally and to general equity equitable principles;
(df) it is not, nor with the execution, delivery and performance by each giving of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of timetime or both will be, in violation of or in default under, its (i) constitution or (ii) any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound, except in the case of (ii), for violations and defaults which individually and in the aggregate would not have a material adverse effect on the transactions contemplated herein or in the Basic Documents; the issue and sale of the Class A Notes and the performance by it of all of the provisions of its obligations under the Class A Notes, the Basic Documents and this Agreement and the consummation of the transactions herein and therein contemplated will not (I) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreementdeed of trust, license loan agreement or any other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, it is a party or by which it is boundbound or to which any of its property or assets of the Trust is subject; (II) result in any violation of the provisions of its constitution or any applicable law or statute or any order, or (iii) violate any law, governmental rule or regulation of any court or governmental agency or body having jurisdiction over it, or any of its properties; or (III) result in the creation or imposition of any lien or encumbrance upon any of its property pursuant to the terms of any lien or encumbrance upon any of its property pursuant to the terms of any indenture, mortgage, contract or other instrument other than pursuant to the Basic Documents; and no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental agency or body is required by the Issuer Trustee for the issue and sale of the Class A Notes or the consummation by the Issuer Trustee of the transactions contemplated by this Agreement or the Basic Documents, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the Securities Act, the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the latter, including such applicable rules and regulations, the "Trust Indenture Act") and as may be required under state securities or "Blue Sky" laws in connection with the purchase and distribution of the Class A Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus, there are no legal or governmental investigations, actions, suits or proceedings pending or, to its knowledge, threatened against or affecting the Issuer Trustee or the Trust or, to which it is or may be a party or to which it or any property of the Trust is or may be the subject, (i) asserting the invalidity of this Agreement or of any of the Basic Documents in relation to the Issuer Trustee, (ii) seeking to prevent the issuance of the Class A Notes or the consummation of any of the transactions contemplated by this Agreement or any of the Basic Documents by the Issuer Trustee, (iii) that may adversely affect the United States Federal or Australian Federal or state income, excise, franchise or similar tax attributes of the Class A Notes, (iv) that could materially and adversely affect the Issuer Trustee's performance of its obligations under, or the State validity or enforceability of, this Agreement or any of Delawarethe Basic Documents against the Issuer Trustee or (v) which could individually or in the aggregate reasonably be expected to have a material adverse effect on the interests of the holders of any of the Class A Notes;
(h) the representations and warranties of the Issuer Trustee contained in the Basic Documents are true and correct in all material respects;
(i) to the Issuer Trustee's knowledge, no event has occurred which would entitle the Manager to direct the Issuer Trustee to retire as trustee of the Trust under clause 19 of the Trust Deed;
(j) it has not taken any corporate action and (to the best of its knowledge and belief having made reasonable inquiry and investigation) no other steps have been taken or legal proceedings been started or threatened against it for its winding-up, dissolution or reorganization or for the appointment of a receiver, receiver and manager, administrator, provisional liquidator or similar officer of it or of any or all of its assets;
(k) subject to compliance with Section 128F of the Income Tax Assessment Act (1936) (the "Australian Tax Act") in relation to payments under the Class A Notes, no withholding or deduction for any taxes, duties, assessments or governmental charges of whatever nature will be imposed or made for or on account of any income, registration, transfer or turnover taxes, customs or other duties or taxes of any kind, levied, collected, withheld or assessed by or within, the Commonwealth of Australia, in connection with the authorization, execution or delivery of any of the Basic Documents to which it is or is to be a party or with the authorization, execution, issue, sale or delivery of the Class A Notes or the performance by the Issuer Trustee of any of its obligations under the Basic Documents to which it is or is to be a party or the Class A Notes, other than any stamp duty payable with respect to the execution of the Basic Documents;
(l) the Class A Notes and the obligations of the Issuer Trustee under the Note Trust Deed will be secured (pursuant to the Security Trust Deed) by a first floating charge over the assets of the Trust subject to the Prior Interest (as defined in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the Class A Notes already been issued, would (whether or not with the giving of notice or direction and/or the passage of time and/or the fulfillment of any other requirement) oblige it to retire as Issuer Trustee or constitute grounds for its removal as Issuer Trustee under any Basic Document or constitute an Event of Default (as defined in the Security Trust Deed).
II. The Manager represents and warrants to each Underwriter and the Issuer Trustee, as of the date of this Agreement and as of the Closing Date, that:
(a) no order preventing or suspending the use of any preliminary prospectus has been issued by the Commission, and each preliminary prospectus filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Manager in writing by such Underwriter directly or through the Representative expressly for use therein;
(b) the Registration Statement has been declared effective under the Securities Act by the Commission; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Manager, threatened by the Commission; and the Registration Statement and the Prospectus (as amended or supplemented if the Manager shall have furnished any amendments or supplements thereto) comply, or will comply, as the case may be, governing in all material respects with the corporateSecurities Act and the Trust Indenture Act and do not and will not, banking or trust powers as of the Bank applicable effective date as to the Registration Statement and any amendment thereto and as of the date of the Prospectus and any amendment or supplement thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, if applicable, at the Closing Date will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing representations and warranties shall not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) of the Note Trustee under the Trust Indenture Act, (ii) statements or omissions in the Registration Statement or the Bank Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Manager in writing by such Underwriter directly or through the Representative expressly for use therein, and (Delawareiii) the information under the heading "Prepayment and Yield Considerations" in the Registration Statement and the Prospectus Supplement.
(c) since the respective dates as appropriate of which information is given in context) the Registration Statement and the Prospectus, there has not been any material adverse change, or any orderdevelopment involving a prospective material adverse change, judgment in or decree applicable affecting the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of the Manager, taken as a whole, otherwise than as set forth or contemplated in the Prospectus, which is material in the context of the Manager performing its obligations and duties under each Basic Document to which it is or is to be a party;
(d) the Bank Manager is a corporation duly incorporated and validly existing under the Corporations ▇▇▇ ▇▇▇▇ of the Commonwealth of Australia, the Manager has the power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement and the Basic Documents to which it is a party and to carry out the transactions contemplated by such Basic Documents; the Manager has been duly qualified or licensed for the Bank (Delaware)transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification or licensing, other than where the failure to be so qualified or licensed or in good standing would not have a material adverse effect on the transactions contemplated herein or in the Basic Documents;
(e) neither the authorizationthis Agreement has been duly authorized, execution or delivery executed and delivered by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of DelawareManager;
(f) there are no proceedings pending or, to the best of each of the Bank's Basic Documents to which it is or is to be a party has been duly authorized by it, the Note Trust Deed has been duly qualified under the Trust Indenture Act and, when executed and delivered by the Manager and each of the other parties thereto, each of the Basic Documents will constitute a legal, valid and binding obligation of the Manager, enforceable against the Manager in accordance with its terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws affecting the enforcement of creditors rights generally and to general equitable principles; and the Bank's Class A Notes and the Basic Documents each will conform to the descriptions thereof in the Prospectus;
(Delawareg) knowledgethe Manager is not, threatened against nor with the giving of notice or affecting lapse of time or both would it be, in violation of or in default under, its constitution or any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound, except for violations and defaults which individually and in the Bank aggregate would not have a material adverse effect on the transactions contemplated herein or in the Bank (Delaware) Basic Documents; the issue and sale of the Class A Notes and the performance by the Manager of all of the provisions of its obligations under the Class A Notes, the Basic Documents and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which the Manager is a party or by which the Manager is bound or to which any of the property or assets of the Manager is subject, nor will any such action result in any violation of the provisions of the constitution of the Manager or any applicable law or statute or any order, rule or regulation of any court or before any governmental authority, agency or arbitration board orbody having jurisdiction over the Manager, or any of its properties; and no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the
Appears in 1 contract
Sources: Underwriting Agreement (Macquarie Securitisation LTD Puma Global Trust No 4)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE)Property Trustee and ---------------------------------------------------------- the Delaware Trustee. The Bank Property Trustee and the Bank (Delaware)Delaware Trustee, each -------------------- severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:that (each such representation and warranty made by the Property Trustee and the Delaware Trustee being made only with respect to itself):
(a) the Bank Property Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust ActNew York;
(b) the Delaware Trustee is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
(c) each of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(cd) this Trust Agreement has been duly authorized, executed and delivered by each of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee and constitutes the valid and legally binding agreement of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(de) the execution, delivery and performance by each of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee of this Trust Agreement has have been duly authorized by all necessary corporate or other action on the part of the Bank Property Trustee and the Bank (Delaware), respectively, Delaware Trustee and do does not require any approval of stockholders of the Bank Property Trustee or the Bank (Delaware) Delaware Trustee and such execution, delivery and performance will not (i) violate either of the BankProperty Trustee's or the BankDelaware Trustee's (Delaware) Charter charter or Byby-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, of any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank Property Trustee or the Bank (Delaware) Trustee, as the case may be, Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States States, the State of New York or the State of Delaware, as the case may be, governing the banking, corporate, banking or trust powers of the Bank Property Trustee or the Bank (Delaware) Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Bank Property Trustee or the Bank (Delaware)Delaware Trustee;
(ef) neither the authorization, execution or delivery by the Bank Property Trustee or the Bank (Delaware) Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions by the Bank Property Trustee or the Bank (Delaware) Delaware Trustee (as the case may beappropriate in context) contemplated herein or therein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to to, any governmental authority or agency under any existing Federal federal law governing the corporatebanking, banking corporate or trust powers of the Bank Property Trustee or the Bank (Delaware)Delaware Trustee, as appropriate in contextthe case may be, under the laws of the United States States, the State of New York or the State of Delaware;
(fg) there are no proceedings pending or, to the best of each of the BankProperty Trustee's and the BankDelaware Trustee's (Delaware) knowledge, threatened against or affecting the Bank Property Trustee or the Bank (Delaware) Delaware Trustee in any court or before any governmental authority, agency or arbitration board oror tribunal which, individually or in the aggregate, would materially and adversely affect the Trust or would question the right, power and authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into or perform its obligations as one of the Trustees under this Trust Agreement.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE)Property Trustee and the Delaware Trustee. The Bank Property Trustee and the Bank (Delaware)Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:that (each such representation and warranty made by the Property Trustee and the Delaware Trustee being made only with respect to itself):
(a) the Bank Property Trustee is a national banking association corporation duly organized, validly existing and in good standing under the laws of the United States; The Bank State of New York;
(Delawareb) the Delaware Trustee is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(bc) each of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(cd) this Trust Agreement has been duly authorized, executed and delivered by each of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee and constitutes the valid and legally binding agreement of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;; and
(de) the execution, delivery and performance by each of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee of this Trust Agreement has have been duly authorized by all necessary corporate or other action on the part of the Bank Property Trustee and the Bank (Delaware), respectively, Delaware Trustee and do not require any approval of stockholders of the Bank Property Trustee or the Bank (Delaware) Delaware Trustee and such execution, delivery and performance will not (i) violate either of the BankProperty Trustee's or the BankDelaware Trustee's (Delaware) Charter charter or Byby-laws, laws or (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the banking, corporate, banking or trust powers of the Bank Property Trustee or the Bank (Delaware) Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Bank Property Trustee or the Bank (Delaware);
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orDelaware Trustee.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. BANK SERVICER AND ANY CO-SERVICER PURSUANT TO THE BANK BENEFICIARIES SERVICING AGREEMENT
(DELAWARE). The Bank i) RBS Cards, in its capacity as initial Servicer hereby makes, (ii) any Co- Servicer, by its appointment pursuant to the relevant Accession Notice, shall be deemed to make, and (iii) any Successor Servicer by its appointment under the Bank Beneficiaries Servicing Agreement shall make, (Delawarein the case of (ii) and (iii) with appropriate modifications to reflect the Co-Servicer's or Successor Servicer's organisation), each severally the following representations and warranties on behalf which the Beneficiaries have relied in appointing RBS Cards, a division of and The Royal Bank of Scotland plc as to itselfthe initial Servicer and, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:whenever appropriate, any Co- Servicer or Successor Servicer.
(a) the Bank 1. ORGANISATION It is a national banking association corporation duly organized, validly existing and in good standing incorporated under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has Scotland or England with full corporate power, authority and legal right to execute, deliver own its assets and conduct its business as such assets are presently owned and its business as presently conducted and with power to enter into the Relevant Documents to which it is a party in its capacity as Servicer and to exercise its rights and perform its obligations under this Trust Agreement thereunder in such capacity and has taken all necessary corporate and other action required to authorize the execution, delivery authorise its execution of each such Relevant Document and its performance by it of this Trust Agreement;
(c) this Trust Agreement its obligations thereunder in such capacity has been duly authorizedtaken.
2. DUE AUTHORISATION All acts, executed conditions and delivered things required to be done, fulfilled and performed in order (i) to enable it lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in its capacity as Servicer in each Relevant Document to which it is a party, (ii) to ensure that the obligations expressed to be assumed by it in such capacity in each such Relevant Document are legal, valid and binding on it and (iii) to make each such Relevant Document and each such or declaration of trust assignment admissible in evidence in England have been done, fulfilled and performed save for the payment of stamp duty in the United Kingdom in respect of any such instrument under any applicable law.
3. NO VIOLATION The execution and delivery of each Relevant Document to which it is party by the Bank Servicer and, if applicable, any Co-Servicer and the Bank (Delaware) and constitutes the valid and legally binding agreement exercise of the Bank its rights and the Bank (Delaware) performance of its obligations thereunder in such capacity will not conflict with or violate any Requirement of Law.
4. BINDING OBLIGATION The obligations expressly to be assumed by it in each Relevant Document to which it is party are legal and valid obligations binding on it and enforceable against it in accordance with its terms, subject to bankruptcyapplicable bankruptcy laws, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors' rights rights, general equitable principles and other limitations on enforcement in the jurisdiction of an Obligor.
5. NO PROCEEDINGS There are no proceedings or investigations pending or, to general equity principles;
(d) the executionbest of its knowledge threatened against it before any court, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate regulatory body, arbitral tribunal or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank public or the Bank (Delaware) and such execution, delivery and performance will not administrative body or agency (i) violate asserting the Bank's or the Bank's (Delaware) Charter or By-laws, invalidity of any Relevant Document to which it is party; (ii) violate seeking to prevent the entering into of any provision of the transactions contemplated by any Relevant Document; (iii) seeking any determination or ruling that, in the reasonable opinion of the Servicer, would materially and adversely affect the performance by it of its obligations under any Relevant Document to which it is party; or (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of any Relevant Document to which it is party.
6. NO CONFLICT The execution and delivery of each Relevant Document to which it is party and the exercise by the Servicer and any Co-Servicer of its rights and the performance of its obligations thereunder will not conflict with, result in any breach of the material terms and provisions of, or constitute, constitute (with or without notice or lapse of time, time or both) a material default under, or result in the creation or imposition ofany agreement, any Lien on any properties included in the Trust Property pursuant to the provisions ofindenture, any indenturecontract, mortgage, credit agreement, license trust deed or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, it is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orits assets is otherwise bound.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank Property Trustee and the Bank (Delaware)-------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itselfitself alone, hereby represents and warrants for the benefit of the Depositor and the Securityholders Holders that:
(a) the Bank Property Trustee is a banking corporation, duly organized, validly existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Declaration and has taken all necessary action to authorize the execution, delivery and performance by it of this Declaration;
(c) the Delaware Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws States of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust ActAmerica;
(bd) each of the Bank and the Bank (Delaware) Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement Declaration and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust AgreementDeclaration;
(ce) this Trust Agreement Declaration has been duly authorized, executed and delivered by the Bank Property Trustee and the Bank (Delaware) Delaware Trustee and constitutes the valid and legally binding agreement of each of the Bank Property Trustee and the Bank (Delaware) Delaware Trustee enforceable against it each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(df) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement Declaration has been duly authorized by all necessary corporate or other action on the part of the Bank Property Trustee and the Bank (Delaware), respectively, Delaware Trustee and do does not require any approval of stockholders of the Bank Property Trustee or the Bank (Delaware) Delaware Trustee and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-lawslaws of the Property Trustee or the Delaware Trustee, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank Property Trustee or the Bank (Delaware) Trustee, as the case may be, Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporatebanking, banking trust or trust general powers of the Bank Property Trustee or the Bank (Delaware) Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Bank Property Trustee or the Bank (Delaware)Delaware Trustee;
(eg) neither the authorization, execution or delivery by the Bank Property Trustee or the Bank (Delaware) Delaware Trustee of this Trust Agreement Declaration nor the consummation of any of the transactions by the Bank Property Trustee or the Bank (Delaware) Delaware Trustee (as the case may beappropriate in context) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal federal law governing the corporatebanking, banking trust or trust general powers of the Bank Property Trustee or the Bank (Delaware)Delaware Trustee, as appropriate in contextthe case may be, under the laws of the United States or the State of DelawareDelaware (other than the filing of appropriate certificates in accordance with the Delaware Business Trust Act);
(fh) there are no proceedings pending or, to the best of each of the BankProperty Trustee's and the BankDelaware Trustee's (Delaware) knowledge, threatened against or affecting the Bank Property Trustee or the Bank (Delaware) Delaware Trustee in any court or before any governmental authority, agency or arbitration board oror tribunal which, individually or in the aggregate, would materially and adversely affect the Trust or would question the right, power and authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into or perform its obligations as one of the Trustees under this Declaration.
Appears in 1 contract
Sources: Declaration of Trust (Provident Companies Inc /De/)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and Depositor as to itself, the ------------------------------------------------------------ Mortgage Loans. --------------- The Depositor hereby represents and warrants for to the benefit of the Depositor Trustee and the Securityholders that:
(a) the Bank is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance NIMS Insurer with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant respect to the provisions of, any indenture, mortgage, credit agreement, license Mortgage Loans or other agreement or instrument to which the Bank or the Bank (Delaware) Trusteeeach Mortgage Loan, as the case may be, is a party as of the date hereof or such other date set forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated herein, the Depositor was the sole owner and holder of the Mortgage Loans. The Mortgage Loans were not assigned or pledged by which it is boundthe Depositor and the Depositor had good and marketable title thereto, and the Depositor had full right to transfer and sell the Mortgage Loans to the Trustee free and clear of any encumbrance, participation interest, lien, equity, pledge, claim or security interest and had full right and authority subject to no interest or participation in, or agreement with any other party to sell or otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all right, title and interest in the Mortgage Loans to the Trustee on behalf of the Trust.
(iii) violate any law, governmental rule or regulation As of the United States or Closing Date, the State of Delaware, as Depositor has not transferred the case may be, governing Mortgage Loans to the corporate, banking or trust powers Trustee on behalf of the Bank Trust with any intent to hinder, delay or defraud any of its creditors.
(iv) Each Mortgage Loan is a "qualified mortgage" within the Bank (Delawaremeaning of Section 860G(a)(3) (as appropriate of the Code and Treasury Regulation section 1.860G-2. It is understood and agreed that the representations and warranties set forth in context) or any order, judgment or decree applicable this Section 2.04 shall survive delivery of the respective Mortgage Files to the Bank Trustee or a Custodian on the Bank (Delaware);
(e) neither Trustee's behalf and shall inure to the authorization, execution or delivery benefit of the Certificateholders. Upon discovery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by Depositor, the Bank Master Servicer, the Securities Administrator or the Bank Trustee that any of the representations and warranties set forth in this Section 2.04 is not accurate (Delawarereferred to herein as a "breach") (as and that such breach materially and adversely affects the case may be) contemplated herein requires interests of the consent or approval ofCertificateholders in the related Mortgage Loan, the giving party discovering such breach shall give prompt written notice to the other parties; provided that a breach of the representation that each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code shall be deemed to materially and adversely affect the interests of the Certificateholders. Within 90 days of its discovery or its receipt of notice toof any such breach, the registration with Depositor shall cure such breach in all material respects or shall either (i) repurchase the taking Mortgage Loan or any property acquired in respect thereof from the Trustee at a price equal to the Purchase Price or (ii) if within two years of the Closing Date, substitute for such Mortgage Loan in the manner described in Section 2.02; provided that if the breach relates to the representation that each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such repurchase or substitution must occur within 90 days from the date the breach was discovered. The Purchase Price of any other action repurchase described in this paragraph and the Substitution Adjustment Amount, if any, shall be remitted to the Master Servicer for deposit to the Master Servicer Custodial Account. It is understood and agreed that, except with respect to any governmental authority or agency under any existing Federal law governing the corporatesecond preceding sentence, banking or trust powers the obligation of the Bank Depositor to repurchase or substitute for any Mortgage Loan or Mortgaged Property as to which such a breach has occurred and is continuing shall constitute the Bank (Delaware)sole remedy respecting such breach available to Certificateholders, as appropriate in contextor to the Trust and the Trustee on behalf of Certificateholders, under the laws and such obligation shall survive until termination of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orTrust hereunder.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Banc of America Funding 2006-8t2 Trust)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE)Pass Through -------------------------------------------------- Trustee. The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby Pass Through Trustee represents and warrants for the benefit to each of the Depositor Owner ------- Participant, the other Trustees, the Manager, the Lessee Parent and the Securityholders Lessee that, as of the date hereof:
(a) the Bank Pass Through Trustee is a national banking association state chartered trust company duly organized, organized and validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing Commonwealth of Massachusetts and in good standing under has the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right under the laws of the Commonwealth of Massachusetts pertaining to its banking, trust and fiduciary powers to execute, deliver and perform its obligations under the Pass Through Trust Agreement, the Pass Through Trust Supplement and this Agreement; [Participation Agreement (GARC II 98-A)]
(b) this Agreement has been, and on the Closing Date, the Pass Through Trust Agreement and has taken all necessary action to authorize the executionPass Through Supplement will have been, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank Pass Through Trustee; this Agreement constitutes, and on the Closing Date, the Pass Through Trust Supplement and the Bank (Delaware) and constitutes Pass Through Trust Agreement will constitute, the legal, valid and legally binding agreement obligations of the Bank and the Bank (Delaware) Pass Through Trustee, enforceable against it the Pass Through Trustee in accordance with its terms, subject to their respective terms except as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and or similar laws affecting the rights of creditors generally and by general applicability relating to or affecting creditors' rights and to general equity principlesprinciples of equity;
(dc) the execution, delivery and performance by each the Pass Through Trustee of the Bank Pass Through Trust Agreement, the Pass Through Trust Supplement and this Agreement, the purchase by the Pass Through Trustee of the Equipment Notes pursuant to this Agreement, and the Bank (Delaware) issuance of this the Pass Through Certificates pursuant to the Pass Through Trust Agreement has been duly authorized by all necessary corporate and the Pass Through Trust Supplement, do not contravene any law, rule or other action regulation of any federal or Massachusetts governmental authority or agency regulating the Pass Through Trustee's banking, trust or fiduciary powers or any judgment or order applicable to or binding on the part of the Bank and the Bank (Delaware), respectively, Pass Through Trustee and do not require contravene or result in any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision breach of, or constitute, with or without notice or lapse of time, constitute a default under, the Pass Through Trustee's articles of association or result in the creation by-laws or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, Pass Through Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment of its properties may be bound or decree applicable to the Bank or the Bank (Delaware)affected;
(ed) neither the authorization, execution or and delivery by the Bank Pass Through Trustee of the Pass Through Trust Agreement, the Pass Through Trust Supplement or the Bank (Delaware) of this Trust Agreement nor the consummation by the Pass Through Trustee of any of the transactions by the Bank contemplated hereby or the Bank (Delaware) (as the case may be) contemplated herein thereby, requires the consent or approval of, the giving of notice to, or the registration with with, or the taking of any other action with respect to to, any federal or Massachusetts governmental authority or agency under regulating the Pass Through Trustee's banking, trust or fiduciary powers;
(e) there are no pending or, to its knowledge, threatened actions or proceedings against the Pass Through Trustee before any existing Federal law governing court or administrative agency which individually or in the corporateaggregate, banking or trust powers if determined adversely to it, would materially adversely affect the ability of the Bank Pass Through Trustee to perform its obligations under this Agreement, the Pass Through Trust Supplement or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of DelawarePass Through Trust Agreement;
(f) there are no proceedings pending orthe Pass Through Trustee is not in default under the Pass Through Trust Agreement, as supplemented by the Pass Through Trust Supplement;
(g) the Pass Through Trustee does not directly or indirectly control, and is not directly or indirectly controlled by or under common control with, [the Owner Participant,] the Owner Trustee, the Underwriters, the Lessee Parent or the Lessee; [Participation Agreement (GARC II 98-A)] (h) the Pass Through Trustee is purchasing the Equipment Notes for the purposes contemplated by the Operative Agreements and not with a view to the best transfer or distribution of each any Equipment Note to any other Person, except as contemplated by the Operative Agreements; and
(i) except for the issue and sale of the Bank's Pass Through Certificates contemplated hereby, the Pass Through Trustee has not directly or indirectly offered any Equipment Note or Pass Through Certificate or any interest in or to the Trust Estate, the Trust Agreement or any similar interest for sale to, or solicited any offer to acquire any of the same from, anyone other than the Owner Trustee and the Bank's (Delaware) knowledgeOwner Participant, threatened against and the Pass Through Trustee has not authorized anyone to act on its behalf to offer directly or affecting indirectly any Equipment Note, any Pass Through Certificate or any interest in and to the Bank Trust Estate, the Trust Agreement or any similar interest related to this transaction for sale to, or to solicit any offer to acquire any of the Bank (Delaware) in same from, any court or before any governmental authority, agency or arbitration board orPerson other than the Owner Trustee and the Owner Participant.
Appears in 1 contract
Sources: Participation Agreement (General American Railcar Corp Ii)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Bank The Borrower is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;.
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the The execution, delivery and performance by it the Borrower of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and the Notes to be delivered by the Bank it, and the Bank (Delaware) and constitutes the valid and legally binding agreement consummation of the Bank and transactions contemplated hereby, are within the Bank (Delaware) enforceable against it in accordance with its termsBorrower's corporate powers, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has have been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectivelyaction, and do not require contravene (i) the Borrower's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval of stockholders of or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the Bank or the Bank (Delaware) and such due execution, delivery and performance will not (i) violate by the Bank's Borrower of this Agreement or the Bank's Notes to be delivered by it, other than those authorizations, approvals, notices, filings and actions that have been obtained, filed or taken on or before the Effective Date.
(Delawared) Charter or By-lawsThis Agreement has been, (ii) violate any provision ofand each of the Notes to be delivered by it when delivered hereunder will have been, or constituteduly executed and delivered by the Borrower. This Agreement is, with or without notice or lapse and each of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may Notes when delivered hereunder will be, is a party or by which it is boundthe legal, or (iii) violate any law, governmental rule or regulation valid and binding obligation of the United States or Borrower enforceable against the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate Borrower in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);accordance with their respective terms.
(e) neither The Consolidated balance sheet of the authorizationBorrower and its Subsidiaries as at December 31, execution or delivery 2000, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2001, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the Bank Chief Financial Officer, Treasurer, Assistant Treasurer, Controller or the Bank (Delaware) of this Trust Agreement nor the consummation of any Assistant Controller of the transactions by the Bank or the Bank (Delaware) (as Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case may be) contemplated herein requires of said balance sheet as at March 31, 2001, and said statements of income and cash flows for the consent or approval ofthree months then ended, to year-end audit adjustments, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers Consolidated financial condition of the Bank or Borrower and its Subsidiaries as at such dates and the Bank (Delaware), as appropriate in context, under the laws Consolidated results of the United States or operations of the State of Delaware;Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Except as disclosed in the Borrower's
(f) there are There is no proceedings pending or, to the best of each knowledge of the Bank's and the Bank's (Delaware) knowledgeBorrower, threatened against action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Bank Borrower or any of its Consolidated Subsidiaries before any court, governmental agency or arbitrator that (i) is reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no material adverse change in the status, or financial effect on the Borrower or any of its Consolidated Subsidiaries, of the Disclosed Litigation or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note or the Bank consummation of the transactions contemplated hereby.
(Delawareg) in any court The Borrower is not an "investment company", or before any governmental authoritya company "controlled" by an "investment company", agency or arbitration board orwithin the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE)Property Trustee and ---------------------------------------------------------- the Delaware Trustee. -------------------- The Bank Property Trustee and the Bank (Delaware)Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor Depositor, the ANZ Australian Affiliate and the Securityholders U.K. Company that:
(a) the Bank The Property Trustee is a national banking association corporation with trust powers, duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organizedNew York, validly existing with trust power and in good standing under the laws of the State of Delaware; authority to execute and The Bank (Delaware)deliver, as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver carry out and perform its obligations under the terms of this Distribution Trust Agreement and has taken all necessary action to authorize the Agreement.
(b) The execution, delivery and performance by it the Property Trustee of this Trust Agreement;
(c) this Distribution Trust Agreement has been duly authorized, authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Bank and the Bank (Delaware) Property Trustee, and constitutes the a legal, valid and legally binding agreement obligation of the Bank and the Bank (Delaware) Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity principles;and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) the The execution, delivery and performance by each of the Bank and the Bank (Delaware) Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the Bank discretion of the court (Delawareregardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law), respectively.
(e) The Delaware Trustee is an entity which has, and do not require any approval of stockholders at all times during the term of the Bank or the Bank (Delaware) and such executionDistribution Trust will maintain, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse its principal place of time, a default under, or result business in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;.
(f) there are no proceedings pending or, to The Property Trustee is a state-chartered bank and at the best time of each appointment has securities rated in one of the Bank's three highest categories by a nationally recognized statistical rating organization and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orhas capital and surplus of at least $50,000,000.
Appears in 1 contract
Sources: Distribution Trust Agreement (Anz Exchangeable Preferred Trust)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank Property Trustee and the Bank (Delaware)-------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor Depositor, the ANZ Australian Affiliate and the Securityholders U.K. Company that:
(a) the Bank The Property Trustee is a national banking association corporation with trust powers, duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing with trust power and in good standing under the laws of the State of Delaware; authority to execute and The Bank (Delaware)deliver, as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver carry out and perform its obligations under the terms of this Distribution Trust Agreement and has taken all necessary action to authorize the Agreement.
(b) The execution, delivery and performance by it the Property Trustee of this Trust Agreement;
(c) this Distribution Trust Agreement has been duly authorized, authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Bank Property Trustee, and assuming due authorization, execution and delivery hereof by the Bank (Delaware) and other parties hereto, constitutes the a legal, valid and legally binding agreement obligation of the Bank and the Bank (Delaware) Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity principles;and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) the The execution, delivery and performance by each of the Bank and the Bank (Delaware) Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the Bank (Delaware), respectively, and do not require any approval of stockholders discretion of the Bank court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or the Bank at law).
(Delawaree) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse The Delaware Trustee is an entity which has its principal place of time, a default under, or result business in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as . If at any time during the case may be, governing the corporate, banking or trust powers term of the Bank or Distribution Trust, the Bank (Delaware Trustee ceases to have its principal place of business in Delaware) (as appropriate in context) or any order, judgment or decree applicable the Delaware Trustee shall provide notice to the Bank or Administrators at least 60 days in advance and shall cease to be the Bank (Delaware);
(e) neither the authorization, execution or delivery Delaware Trustee unless approved by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any written consent of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;Administrators.
(f) there are no proceedings pending or, to The Property Trustee is a state-chartered bank and at the best time of each appointment has securities rated in one of the Bank's three highest categories by a nationally recognized statistical rating organization and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orhas capital and surplus of at least $50,000,000.
Appears in 1 contract
Sources: Distribution Trust Agreement (Def Exchangeable Preferred Trust)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank Trading Company and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit Trading Manager; Covenants of the Depositor Trading Manager and the Securityholders that:Trading Company.
(a) The Trading Company and the Bank Trading Manager represent and warrant to the Trading Advisor, as follows:
(i) The Trading Company has provided to the Trading Advisor the Offering Memoranda in the form first issued. The Trading Company will ensure that the Members will not utilize any amendment or supplement to the Offering Memoranda unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has approved any description of the Trading Advisor and the Trading Program contained therein;
(ii) Each Members’ organizational agreement provides for the subscription for and sale of the Units in the respective Member; all material actions required to be taken by each Member as a condition to the sale of its Units to qualified subscribers therefor has been, or prior to each closing described in the Member’s Confidential Private Placement Memorandum shall have been taken; and, upon payment of the consideration therefor specified in each accepted subscription agreement in such form as attached to the respective Member’s Confidential Private Placement Memorandum, the Units will constitute valid interests in the Member. Each Member is in material compliance with all laws, rules, regulations and orders of any governmental agency or self-regulatory organization applicable to the Member’s business and the offering, sale, issuance and distribution of its Units;
(iii) The Trading Company is a national banking association limited liability company duly organizedformed pursuant to its Certificate of Formation, validly existing Operating Agreement and in good standing under the laws of the United States; The Bank (Delaware) Delaware Limited Liability Company Act and is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Offering Memoranda; the Trading Company is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and The Bank (Delaware), as Delaware Trustee, fulfills for where failure to be so qualified could materially adversely affect the trust the statutory requirements of Section 3807 of the Delaware Business Trust ActTrading Company’s ability to perform its obligations hereunder;
(biv) each The Trading Manager is duly organized and validly existing and in good standing as a limited liability company under the laws of the Bank State of Delaware and is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the Bank (Delaware) has full corporate power, authority nature or conduct of its business requires such qualification and legal right where the failure to execute, deliver and be so qualified could materially adversely affect the Trading Manager’s ability to perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreementhereunder;
(cv) The Trading Company and the Trading Manager have full power and authority under applicable law to conduct their business and to perform their respective obligations under this Trust Agreement and as described in the Offering Memoranda;
(vi) As of the date hereof, the Offering Memoranda contain all statements and information required to be included therein by the CEAct or other applicable law and at all times subsequent thereto up to and including each closing, the Offering Memoranda will comply in all material respects with the requirements of the rules of the NFA, the CEAct or other applicable laws. The Offering Memoranda as of the initial closing (as described therein), date of issue, and at each closing will not contain any misleading or untrue statements of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Any supplemental sales literature, when read in conjunction with the Offering Memoranda, will not contain any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Offering Memoranda or supplemental sales literature made in reliance upon and in conformity with information furnished by and relating to the Trading Advisor, its trading methods or its trading performance;
(vii) Since the respective dates as of which information is given in the Offering Memoranda, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Manager or the Trading Company, whether or not arising in the ordinary course of business;
(viii) This Agreement has been duly and validly authorized, executed and delivered by the Bank Trading Manager on behalf of the Trading Company and the Bank (Delaware) Trading Manager and constitutes the valid a valid, binding and legally binding enforceable agreement of the Bank Trading Company and the Bank (Delaware) enforceable against it Trading Manager in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(dix) The execution and delivery of this Agreement, the execution, delivery and performance by each incurrence of the Bank obligations set forth herein and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part consummation of the Bank transactions contemplated herein and in the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance Offering Memoranda will not (i) violate the Bank's violate, or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision constitute a breach of, or constitute, with or without notice or lapse of time, a default under, the Trading Manager’s certificate of formation or result in bylaws, or the creation Trading Company’s Certificate of Formation or imposition ofOperating Agreement, or any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other material agreement or instrument to by which either the Bank Trading Manager or the Bank (Delaware) TrusteeTrading Company, as the case may be, is a party bound or by which it is boundany material order, or (iii) violate any lawrule, governmental rule law or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank Trading Manager or the Bank (Delaware)Trading Company of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Manager or the Trading Company;
(ex) neither Except as set forth in the authorizationOffering Memoranda, execution or delivery by there has not been in the Bank or five years preceding the Bank (Delaware) of this Trust Agreement nor the consummation of any date of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) Offering Memoranda and there are no proceedings is not pending or, to the best of each of the Bank's and the Bank's (Delaware) Trading Manager’s knowledge, threatened against threatened, any action, suit or affecting the Bank proceeding at law or the Bank (Delaware) in equity before or by any court or before by any federal, state, municipal or other governmental authoritybody or any administrative, self-regulatory or commodity exchange organization to which the Trading Manager, any Trading Manager Principal (as hereinafter defined) or the Trading Company is or was a party, or to which any of the assets of the Trading Manager or the Trading Company is or was subject; and neither the Trading Manager nor any of the principals, as defined in CFTC Reg. 4.10 under the CEAct of the Trading Manager (“Trading Manager Principals”) has received any notice of an investigation by the NFA, CFTC or any other administrative or self-regulatory organization, whether U.S. or foreign, regarding non-compliance by the Trading Manager or the Trading Manager Principals or the Trading Company with the CEAct, the Securities Act of 1933, as amended, or any other applicable laws which are material to an investor’s decision to invest in a Member;
(xi) The Trading Manager and the Trading Manager Principals have all federal, state and foreign governmental, regulatory and exchange approvals and licenses, and have effected all filings and registrations with federal, state and foreign governmental agencies required to conduct their business and to act as described in the Offering Memoranda or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The Trading Manager’s principals identified in the Offering Memoranda are all of the Trading Manager Principals;
(xii) The Trading Company is and shall remain in compliance in all respects with all laws, rules, regulations and orders of any government, governmental agency or arbitration board orself-regulatory organization applicable to its business as described in the Offering Memoranda and this Agreement;
(xiii) The assets of the Trading Company do not and shall not constitute “plan assets” for the purpose of the U.S. Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended; and
(xiv) The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Trading Manager shall promptly notify the Trading Advisor of the nature of such event.
(b) Covenants of the Trading Manager and the Trading Company. The Trading Manager and the Trading Company covenants and agrees that:
(i) The Trading Manager and the Trading Company shall maintain all registrations and memberships necessary for the Trading Manager and the Trading Company to continue to act as described herein and in the Offering Memoranda and to all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Trading Manager and the Trading Company’s ability to act as described herein and in the Offering Memoranda;
(ii) The Trading Manager and the Trading Company shall inform the Trading Advisor immediately as soon as the Trading Manager, the Trading Company or any of their principals becomes the subject of any lawsuit, investigation, claim, or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting the business of the Trading Manager or the Trading Company. The Trading Manager and the Trading Company shall also inform the Trading Advisor immediately if the Trading Manager or the Trading Company or any of their officers become aware of any material breach of this Agreement by the Trading Manager or the Trading Company; and
(iii) The Trading Company and the Trading Manager will furnish to the Trading Advisor copies of the Offering Memoranda, and all amendments and supplements thereto, in each case as soon as available and will ensure that the Members do not use any such amendments or supplements as to which the Trading Advisor in writing has reasonably objected.
Appears in 1 contract
Sources: Advisory Agreement
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank Issuer Trustee and the Bank (Delaware), each severally on behalf of and as to itself, hereby CBA ---------------------------------------------------------------- Parties. -------
I. The Issuer Trustee represents and warrants for to each Underwriter and the benefit CBA Parties as of the Depositor date of this Agreement and as of the Closing Date, and agrees with each Underwriter and the Securityholders CBA Parties, that:
(a) since the Bank respective dates as of which information is provided in the Registration Statement and the Prospectus, there has not been any material adverse change or any development involving a national banking association prospective material adverse change in or affecting the general affairs, business, prospects, management, or results of operations, condition (financial or otherwise) of Perpetual or the Trust except as disclosed in the Prospectus which is material in the context of performing the Issuer Trustee's obligations and duties under the Notes and each Basic Document to which it is or is to be party;
(b) Perpetual has been duly organized, incorporated and is validly existing as a corporation under the laws of New South Wales, with power and authority (corporate and other) to conduct its business as described in the Prospectus, and to enter into and perform the Issuer Trustee's obligations under this Agreement and the Basic Documents and Perpetual has been duly qualified for the transaction of business and is in good standing under the laws of each other jurisdiction in which it conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a material adverse effect on the transactions contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this Agreement;
(d) the Notes have been duly authorized by Perpetual, and, when the Class A-1 Notes have been issued (and duly authenticated by the Class A-1 Note Trustee), delivered and paid for pursuant to this Agreement, they will constitute valid and binding obligations of the Issuer Trustee entitled to the benefits of the Note Trust Deed and the Security Trust Deed, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws affecting the enforcement of creditors rights generally and to general equitable principles.
(e) the execution, delivery and performance by Perpetual of each of the Basic Documents to which it either is, or is to be, a party and this Agreement has been duly authorized by Perpetual and, when executed and delivered by it and the other parties thereto, each of the Basic Documents will constitute a legal, valid and binding obligation of the Issuer Trustee, enforceable against it in accordance with its terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws affecting the enforcement of creditors rights generally and to general equitable principles;
(f) Perpetual is not, nor with the giving of notice or lapse of time or both will be, in violation of or in default under: (i) its constitution or (ii) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which either is a party or by which it or any of its properties is bound, except in the case of (ii), for violations and defaults which individually and in the aggregate would not have a material adverse effect on the transactions contemplated in or in the Basic Documents; the issue and sale of the Notes and the performance by it of all of the provisions of the Issuer Trustee's obligations under the Notes, the Basic Documents and this Agreement and the consummation of the transactions herein and therein contemplated will not (I) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, (II) result in any violation of the provisions of its constitution or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it, or any of its properties; or (III) result in the creation or imposition of any lien or encumbrance upon any of its property pursuant to the terms of any indenture, mortgage, contract or other instrument other than pursuant to the Basic Documents; and no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Issuer Trustee of the transactions contemplated by this Agreement or the Basic Documents, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the latter, including such applicable rules and regulations, the "Trust Indenture Act") and as may be required under state securities or "Blue Sky" Laws in connection with the purchase and distribution of the Class A-1 Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus, there are no legal or governmental investigations, actions, suits or proceedings pending or, to its knowledge, threatened against or affecting it or the Trust or to which it is or may be a party or to which it is or may be the subject: (i) asserting the invalidity of this Agreement or of any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or any of the Basic Documents by the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian Federal or state income, excise, franchise or similar tax attributes of the Class A-1 Notes, (iv) that could materially and adversely affect the Issuer Trustee's performance of its obligations under, or the validity or enforceability against the Issuer Trustee of, this Agreement or any of the Basic Documents or (v) which could individually or in the aggregate reasonably be expected to have a material adverse effect on the interests of the holders of any of the Class A-1 Notes; and there are no contracts or other documents to which it is party or bound that are required to be filed as an exhibit to the Registration Statement or laws, contracts or other documents required to be described in the Registration Statement or the Prospectus which are not filed or described as required;
(h) the representations and warranties of the Issuer Trustee contained in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce, limit or otherwise adversely affect the right of the Issuer Trustee to be indemnified from the assets of the Trust under Clause 16 of the Master Trust Deed;
(j) the Prospectus complies with the Listing Rules of the UK Listing Authority, and any preliminary prospectus and the Prospectus (in the case of the Prospectus), as of the date of this Agreement and in the case of any preliminary prospectus, as of its date) (i) contains all the information required by section 146 of the Financial Services ▇▇▇ ▇▇▇▇ (the "Financial Services Act"); and (ii) in the context of offers and sales of the Class A-1 Notes to any person (A) who is outside the "United States" (as defined in Regulation S under the Securities Act) or (B) who is not a "U.S. person" (as defined in Regulation S under the Securities Act), is accurate in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the information therein, in the light of the circumstances under which it is given, not misleading and all reasonable inquiries have been made by or on behalf of the Issuer Trustee to ascertain the accuracy of all such information;
(k) Perpetual has not taken any corporate action and (to the best of its knowledge and belief having made reasonable inquiry and investigation) no other steps have been taken or legal proceedings been started or threatened against it for its winding-up, dissolution or reorganization or for the appointment of a receiver, receiver and manager, administrator, provisional liquidator or similar officer of it or of any or all its assets;
(l) no stamp or other duty is assessable or payable in, and subject only to compliance with Section 128F of the Income Tax Assessment Act 1936 (the "Australian Tax Act") in relation to interest payments under the Class A-1 Notes, no withholding or deduction for any taxes, duties, assessments or governmental charges of whatever nature will be imposed or made for or on account of any income, registration transfer or turnover taxes, customs or other duties or taxes of any kind, levied, collected, withheld or assessed by or within, the Commonwealth of Australia or any sub-division of or authority therein or thereof having power to tax in such jurisdiction, in connection with (i) the authorization, execution or delivery or any of the Basic Documents to which it is or is to be a party or with the authorization, execution, issue, sale or delivery of the Class A-1 Notes under this Agreement, (ii) the sale and delivery of the Class A-1 Notes by the Underwriters contemplated in this Agreement and the Prospectus or (iii) the execution, delivery or performance by the Issuer Trustee of any of the Basic Documents to which it is or is to be a party or the Class A-1 Notes; The Bank except, in the case of sub clause (Delawareiii), for any of the Basic Documents on which nominal stamp duty is payable or any other document executed in connection with the perfection of the Issuer's Trustee's legal title to the Mortgage Loans on which stamp duties or registration fees may be payable;
(m) the Class A-1 Notes and the obligations of the Issuer Trustee under the Note Trust Deed will be secured (pursuant to the Security Trust Deed) by a first floating charge over the assets of the Trust, subject to the Prior Interest (as defined in the Security Trust Deed); and
(n) no event has occurred or circumstances arisen which, had the Notes already been issued, would (whether or not with the giving of notice or direction and/or the passage of time and/or fulfillment of any other requirement) oblige it to retire as Issuer Trustee or constitute grounds for its removal as Issuer Trustee under any Basic Document or constitute an Event of Default (as defined in the Security Trust Deed).
II. Each CBA Party severally represents and warrants to each Underwriter and the Issuer Trustee as of the date of this Agreement and as of the Closing Date that:
(a) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change, or any development involving a Delaware banking corporation prospective material adverse change, in or affecting (x) the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of the CBA Parties taken as a whole or (y) the general affairs, business, prospects, condition (financial or otherwise) of the Trust otherwise than as set forth or contemplated in the Prospectus;
(b) it has been duly organized, incorporated and is validly existing as a corporation under the laws of (in the case of CBA) the Australian Capital Territory and (in the case of the Manager) New South Wales, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement and the Basic Documents, and, in each case, has been duly qualified or licensed for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for failure to be so qualified or in good standing would not have a material adverse effect on the trust transactions contemplated in this Agreement or in the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust AgreementBasic Documents;
(c) this Trust Agreement has been duly authorized, executed and delivered by it;
(d) each of the Bank Basic Documents to which it is or is to be a party has been duly authorized by it and, upon effectiveness of the Registration Statement, the Note Trust Deed will have been duly qualified under the Trust Indenture Act and each of the Basic Documents, when executed and delivered by each CBA Party that is a party to it and the Bank (Delaware) and constitutes the other parties thereto, will constitute a legal, valid and legally binding agreement obligation of the Bank and the Bank (Delaware) it, enforceable against it in accordance with its terms, subject as to enforceability to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and conservatorship, receivership, liquidation or other similar laws affecting the enforcement of general applicability relating to or affecting creditors' creditors rights generally and to general equity equitable principles; and, in the case of the Manager only, the Class A-1 Notes and the Basic Documents each will conform to the descriptions thereof in the Prospectus;
(de) it is not, nor with the execution, delivery and performance by each giving of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of timetime or both would it be, a in violation of or in default under, its constitution or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreementdeed of trust, license loan agreement or other agreement or instrument to which it is a party or by which it or any of its properties is bound, except for violations and defaults which individually and in the Bank aggregate would not have a material adverse effect on the transactions contemplated in this Agreement or in the Bank Basic Documents; the issue and sale of the Notes and the performance by it of all or any obligations it has under the Notes, the Basic Documents and this Agreement and the consummation of the transactions herein and therein contemplated will not (Delawarei) Trusteeconflict with or result in a breach of any of the terms or provisions of, as the case may beor constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is boundbound or to which any of its property or assets of any it is subject, (ii) result in any violation of the provisions of the constitution of a CBA Party or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over a CBA Party, or any of its properties or (iii) violate result in the creation or imposition of any lawlien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract, or other instrument other than pursuant to the Basic Documents; and no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental rule agency or regulation body is required for the issue and sale of the Class A-1 Notes or the consummation by it of the transactions contemplated by this Agreement or the Basic Documents, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the Securities Act, the Trust Indenture Act and as may be required under state securities or Blue Sky Laws of the United States or in connection with the State of Delaware, as the case may be, governing the corporate, banking or trust powers purchase and distribution of the Bank or Class A-1 Notes by the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to Underwriters and the Bank or registration of the Bank (Delaware)Charge with the ASIC on the Closing Date;
(ef) neither other than as set forth or contemplated in the authorizationProspectus, execution there are no legal or delivery by governmental investigations, actions, suits or proceedings pending or, to its knowledge, threatened against or affecting it or its properties, the Bank Trust or the Bank Trust's properties or, to which it or the Trust is or may be a party or to which it, the Trust or any property of it or the Trust is or may be the subject, (Delawarei) asserting the invalidity of this Trust Agreement nor or of any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or any of the Bank Basic Documents, (iii) that may adversely affect the U.S. federal or Australian federal or state income, excise, franchise, stamp duty or similar tax attributes of the Class A-1 Notes, (iv) that could materially and adversely affect its performance of its obligations under, or the Bank (Delaware) (as the case may be) contemplated herein requires the consent validity or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orenf
Appears in 1 contract
Sources: Underwriting Agreement (Securitisation Advisory Services Pty LTD 2000 Med Trust)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board or
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK Vendors The Vendors represent and warrant to the Purchaser severally, not jointly as follows (DELAWARE). The Bank and unless the Bank (Delaware), each severally on behalf of and as to itself, hereby represents and warrants for the benefit wording of the Depositor representations and warranties refer to a specific date, the Securityholders that:following representations and warranties refer to both the date of the signing of this Agreement as well as the Closing Date):
(a) Authorisation and Validity of the Agreement Each of the Vendors has the legal capacity, right, power and authority to execute, deliver and perform this Agreement and the other agreements and documents contemplated by this Agreement. The execution, delivery and performance by the Vendors of this Agreement and the consummation by them of the transactions contemplated hereby have been duly authorised by all necessary action on the part of the Vendors. This Agreement has been duly executed and delivered by the Vendors.
(b) Capitalisation Following the registration of the merger described in Recital A hereof the Company initiated the required procedures regarding the printing out of the Sale Shares, such printing out will take place prior to the Closing. The Sale Shares are the whole of the issued registered capital of the Company. Except for the right of first refusal attached to the B Shares as provided in the Articles, there are no rights of first refusal, pre-emptive rights or other similar agreements (whether by the Vendors or otherwise) obligating the Company or any Vendor to offer any Sale Shares to any person and none of the Sale Shares were issued in violation of any pre-emptive or similar rights.
(c) Sale Shares At Closing the Sale Shares shall be validly issued, fully paid up and owned by and registered under the name of the Vendors. Upon the Closing the Sale Shares will be transferred to the Purchaser, free from all encumbrances, claims and litigation except for the Agreed Encumbrances and other encumbrances as the Bank and the Purchaser may agree.
(d) Organisation of the Company The Company is a national banking association company limited by shares established under the laws of the Republic of Hungary and is duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);standing.
(e) neither Taxation To the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any best of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers knowledge of the Bank or Vendors the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delaware;Company has lawfully performed its obligations to file all relevant tax returns and to pay taxes and contributions.
(f) there are no proceedings pending or, to Books To the best of each the knowledge of the Bank's Vendors the Company has kept its books in accordance with the relevant legal rules and its financial statements present a true and fair view of the Bank's Company’s financial position in all material respects.
(Delawareg) knowledge▇▇▇▇▇.▇▇ Rt. Following the execution of the sale of the shareholding interest in ▇▇▇▇▇.▇▇ Rt. neither the Company nor its shareholders will have any remaining material legal, threatened against financial or affecting tax liabilities in connection with or arising from the Bank sale of the shareholding interest in ▇▇▇▇▇.▇▇ Rt..
(h) Adherence with Securities Laws. Each of the Vendors agree that they are acquiring the Transferable EuroWeb Shares for investment purposes and will not offer, sell or otherwise transfer, pledge or hypothecate any of the Bank Transferable EuroWeb Shares issued to them (Delawareother than pursuant to an effective Registration Statement under the Securities Act of 1933, as amended) in any court directly or before any governmental authorityindirectly unless:
(i) the sale is made pursuant to the exemption from registration under the Securities Act of 1933, agency or arbitration board as amended, provided by Rule 144 thereunder; or
Appears in 1 contract
Sources: Sale and Purchase Agreement
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE)Guarantor. The Bank and the Bank (Delaware), each severally on behalf of and as to itself, hereby Guarantor represents and warrants for to the benefit of the Depositor and the Securityholders Obligee that:
(a) 2.1 the Bank Guarantor is a national banking association corporation duly organized, organized and validly existing and in good standing under the laws of the United States; The Bank (Delaware) jurisdiction of its incorporation with full corporate power and authority to conduct its business as the same is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Actpresently conducted;
(b) each of 2.2 the Bank Guarantor has legal power and authority to enter into and carry out the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it terms of this Trust AgreementGuarantee;
(c) 2.3 this Trust Agreement has been duly authorized, executed and delivered by the Bank and the Bank (Delaware) and constitutes the valid and legally binding agreement of the Bank and the Bank (Delaware) enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement Guarantee has been duly authorized by all necessary action, corporate or other action other, on the part of the Bank Guarantor, and this Guarantee constitutes in accordance with its terms, a legal, valid and binding instrument enforceable against the Guarantor, except to the extent limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws of general application relating to or affecting the enforcement of creditors' rights from time to time in effect;
2.4 except as previously disclosed to the Syndicate Agent and the Bank (Delaware)Agent in writing, respectivelythere are no actions, suits or proceedings pending or, to the Guarantor's knowledge, threatened against the Guarantor, which question the validity of this Guarantee or action taken or to be taken by the Guarantor pursuant to this Guarantee which would, if adversely determined, materially and do adversely affect the performance by the Guarantor of its obligations hereunder;
2.5 the execution and delivery of this Guarantee by the Guarantor and the performance by the Guarantor of its obligations under this Guarantee will not require violate any approval of stockholders provisions of the Bank Certificate of Incorporation or Bylaws of the Bank (Delaware) Guarantor and such execution, delivery and performance will not (i) violate result in a breach of the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision terms and provisions of, or constitute, with or without notice or lapse of time, constitute a default under, any other agreement or result undertaking by the Guarantor or by which it or any of its property is bound or any order of any court or administrative agency entered in any proceedings binding on the creation Guarantor, or imposition ofviolate any applicable statute, rule or regulation;
2.6 the Guarantor is not in default and no Incipient Default has occurred, in any Lien on respect which would materially and adversely affect the ability of the Guarantor to perform its obligations under this Guarantee, under any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit loan agreement, license deed of trust, indenture or other agreement with respect thereto or instrument evidence of indebtedness to which the Bank or the Bank (Delaware) Trustee, as the case may be, it is a party or by which it is bound, and is not in violation of or (iii) violate in default, in any law, governmental rule or regulation respect which would materially and adversely affect the ability of the United States or the State of DelawareGuarantor to perform its obligations under this Guarantee, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or under any order, writ, judgment or decree applicable of any court, arbitrator or governmental authority, commission, board, agency or instrumentality, domestic or foreign;
2.7 the Guarantor has more than one place of business and the present location of the place of business which is its chief executive office is 111▇ ▇▇▇▇▇▇▇▇, Oakland, California 94607;
2.8 the Guarantor has no knowledge of any actual or proposed deficiency or additional assessment in connection with any Taxes which either in any case or in the aggregate would be materially adverse to the Bank Guarantor and which would materially and adversely affect the ability of the Guarantor to perform its obligations hereunder;
2.9 all Taxes (other than taxes based on or measured by income and withholding taxes), liability for the Bank payment of which has been incurred by the Guarantor in connection with the execution, delivery and performance by it of each Loan Document to which it is or will be a party, have been paid (Delawareor provided for in its accounts if not payable on or prior to the delivery date of the respective Vessel);
2.10 all governmental consents, licenses, permissions, approvals, registrations or authorizations or declarations required (ei) neither to enable it lawfully to enter into and perform its payment obligations under this Guarantee and to require the authorizationCharterer to perform its other obligations under the Charter, execution (ii) to ensure that its respective obligations under clause (i) hereunder are legal, valid and enforceable and (iii) to make this Guarantee admissible in evidence have been obtained or delivery by made and are in full force and effect;
2.11 it has not taken any corporate action nor to its knowledge have any other steps been taken or legal proceedings been started or threatened against it for its winding-up, dissolution or reorganization or for the Bank appointment of a receiver, administrative receiver, administrator, trustee or the Bank (Delaware) similar officer of this Trust Agreement nor the consummation it or of any or all of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delawareits respective assets and revenues;
(fi) there are no proceedings pending orwritten representation, warranty or statement made or other document provided by the Guarantor in connection with the negotiation of this Guarantee at the time when given is or was untrue or contains or contained any misrepresentation of a material fact or omits or omitted to state any material fact necessary to make any such statement herein or therein not misleading and (ii) all financial projections, if any, prepared by the Guarantor and made available to the best Obligee have been prepared in good faith based upon reasonable assumptions (it being understood that such projections are subject to significant uncertainties and contingencies, many of each of which are beyond the BankGuarantor's control, and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in that no assurances can be given that any court or before any governmental authority, agency or arbitration board orsuch projections will be realized);
Appears in 1 contract
Sources: Agreement to Acquire and Charter (American President Companies LTD)
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE)Owner Trustee and the Non-Georgia Trust Company. The Bank Non-Georgia Trust Company and the Bank (Delaware)Owner Trustee hereby severally represent and warrant that, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders thatClosing Date:
(a) the Bank Non-Georgia Trust Company is a national banking association duly organized, validly existing and in good standing under the laws of the United States; The Bank (Delaware) is a Delaware banking corporation duly organizedStates of America, validly existing has the corporate power and in good standing under the laws of the State of Delaware; and The Bank (Delaware)authority, as Delaware TrusteeOwner Trustee and/or in its individual capacity to the extent expressly provided herein or in the Trust Agreement, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each of the Bank to conduct its business as presently conducted, to own or hold under lease its properties and the Bank (Delaware) has full corporate power, authority and legal right to execute, deliver enter into and perform its obligations under the Trust Agreement, this Trust Agreement and has taken all necessary action each of the other Operative Documents to authorize the execution, delivery and performance by which it of this Trust Agreementis a party;
(ci) this the Trust Agreement has been duly authorized, executed and delivered by the Bank Non-Georgia Trust Company, and (ii) assuming the Bank (Delaware) due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust Agreement constitutes the a legal, valid and legally binding agreement obligation of the Bank and the Bank (Delaware) Non-Georgia Trust Company, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to individual capacity or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) as Owner Trustee, as the case may be, is in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(i) this Agreement has been duly authorized, executed and delivered by the Owner Trustee, and (ii) assuming the due authorization, execution and delivery of this Agreement by each party hereto other than the Owner Trustee and the Non-Georgia Trust Company, this Agreement constitutes a party or by which it is boundlegal, or (iii) violate any law, governmental rule or regulation valid and binding obligation of the United States Non-Georgia Trust Company and the Owner Trustee, enforceable against the Non-Georgia Trust Company or the State of Delawareas Owner Trustee, as the case may be, in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(d) (i) each of the other Operative Documents to which the Owner Trustee is a party has been duly authorized, executed and delivered by the Owner Trustee, and (ii) assuming the due authorization, execution and delivery of each of the other Operative Documents by each party thereto other than the Owner Trustee, each of the other Operative Documents to which the Owner Trustee is a party constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(e) upon the execution and delivery of the Loan Certificate by the Owner Trustee in accordance with the Loan Agreement and payment therefor in accordance with the terms of this Agreement, the Loan Certificate will constitute the legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(f) the execution and delivery by the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, of the Trust Agreement, this Agreement and the other Operative Documents to which it is a party, the consummation by the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, of the transactions contemplated hereby and thereby, and the compliance by the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, with the terms and provisions hereof and thereof, do not and will not contravene any Applicable Law of the United States of America governing its banking or trust powers or the State of Connecticut governing the corporate, Non-Georgia Trust Company or the banking or trust powers of the Bank Non-Georgia Trust Company, or the Bank (Delaware) (as appropriate Trust Agreement, or its organizational documents or by-laws, or contravene the provisions of, or constitute a default by the Non-Georgia Trust Company under, or result in context) the creation of any Facility Lessor's Lien attributable to it upon the Trust Estate or any orderindenture, judgment mortgage or decree applicable other material contract, agreement or instrument to which the Non-Georgia Trust Company is a party or by which the Non-Georgia Trust Company or its property is bound; provided, however, that no representation is made with respect to the Bank right, power or authority of the Non-Georgia Trust Company or the Bank (Delaware)Owner Trustee to act as operator of the Facility following an Event of Default;
(eg) neither no authorization or approval or other action by, and no notice to or filing or registration with, any Connecticut Governmental Entity or federal Governmental Entity governing its banking or trust powers is required for the authorizationdue execution, execution delivery or delivery performance by the Bank Non-Georgia Trust Company or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (Owner Trustee, as the case may be) contemplated herein requires , of the consent Trust Agreement, this Agreement or the other Operative Documents to which the Owner Trustee is a party, other than any such authorization or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the corporatenotice or filing as has been duly obtained, banking taken or trust powers of the Bank or the Bank (Delaware), as appropriate in context, under the laws of the United States or the State of Delawaregiven;
(fh) there are is no proceedings pending or, to the best of each knowledge of the BankNon-Georgia Trust Company threatened, action, suit, investigation or proceeding against the Non-Georgia Trust Company either in its individual capacity or as Owner Trustee, before any Governmental Entity which, if determined adversely to it, would materially adversely affect the ability of the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, this Agreement or the other Operative Documents to which it is a party or would materially adversely affect the Facility, the Rocky Mountain Site or any interest therein or part thereof or the security interest of the Lender in the Collateral;
(i) the Facility Lessor's right, title and interest in and to the Trust Estate is free of any Facility Lessor's Liens attributable to the Non-Georgia Trust Company;
(j) the chief executive office and principal place of business of the Non-Georgia Trust Company where the Owner Trustee will keep its corporate records concerning the Facility, the Rocky Mountain Site and the Bank's Operative Documents is located at Hartford, Connecticut; and
(Delawarek) knowledgeimmediately prior to the Closing, threatened against the Owner Trustee is not an "electric utility" or affecting the Bank a "public utility" or the Bank (Delaware) in a "public utility holding company" under any court or before any governmental authority, agency or arbitration board orApplicable Law.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. BANK AND THE BANK (DELAWARE). The Bank Warrantors to KongZhong, and as the Bank (Delaware)case may be, KongZhong Nominee As of the date of this Agreement up to, and including the Closing Date as though made on each day and up to the Closing Date, each of the Warrantors jointly and severally on behalf of and as to itself, hereby represents and warrants for to KongZhong, and where relevant, to KongZhong Nominee, except as set forth in the benefit of the Depositor and the Securityholders thatdisclosure schedule attached hereto as Exhibit C ("DISCLOSURE SCHEDULE"), as follows:
6.1 Sharp Edge's Corporate Organization and Authority. Sharp Edge: (a) the Bank is a national banking association company duly organizedestablished, validly existing existing, authorized to exercise all its corporate powers, rights, and privileges, and is in good standing under the laws of BVI; (b) has the United Statescorporate power and corporate authority to own, lease and operate its properties and to carry on its business as is now conducted; The Bank and has complied with its constitutional or organizational documents in all respects, and none of the activities, agreements, commitments, obligations or rights of Sharp Edge is ultra ▇▇▇▇▇, unauthorized or in violation of such constitutional or organizational documents or any applicable laws; 16 <PAGE> (Delawarec) is qualified as a foreign corporation in all jurisdictions in which qualification is required; (d) has made available to KongZhong a copy of all of its directors' and shareholders' minutes and/or resolutions. Each copy is true, correct, up-to-date and complete and contains all amendments and all minutes of meetings and actions taken by the shareholders and directors of Sharp Edge since the time of establishment of Sharp Edge up to, and including, the date of this Agreement and accurately reflects all transactions referred to in such minutes and/or resolutions; (e) has properly kept all books, records and registers required to be kept by it under any applicable laws, and the copies of the constitutional or organizational documents of Sharp Edge supplied to KongZhong are true, accurate, up-to-date and complete; (f) has filed or delivered all returns, particulars, resolutions and other documents required to be filed with or delivered to any governmental authority in respect of Sharp Edge; and (g) has not given any powers of attorney currently in force, and there are no outstanding authorities (express or implied) by which any Person may enter into any contract or commitment to do anything outside the ordinary course of business on behalf of Sharp Edge.
6.2 Sharp Edge WFOE's Corporate Organization and Authority. Sharp Edge WFOE: (a) is a Delaware banking corporation wholly foreign-owned enterprise duly organizedestablished, validly existing and in good standing is authorized to exercise all its corporate powers, rights, and privileges under the laws of the State of DelawarePRC; and The Bank (Delaware), as Delaware Trustee, fulfills for the trust the statutory requirements of Section 3807 of the Delaware Business Trust Act;
(b) each is duly approved by the relevant PRC governmental authorities and has the corporate power and corporate authority to own, lease and operate its properties and to carry on its business as is now conducted, and as authorized to be conducted under its current business license; has complied with its constitutional or organizational documents in all respects, and none of the Bank and the Bank (Delaware) has full corporate poweractivities, authority and legal right to executeagreements, deliver and perform its commitments, obligations under this Trust Agreement and has taken all necessary action to authorize the executionor rights of Sharp Edge WFOE is ultra ▇▇▇▇▇, delivery and performance by it unauthorized or in violation of this Trust Agreement;
such constitutional or organizational documents or any applicable laws; (c) is qualified as a foreign corporation in all jurisdictions in which qualification is required; (d) has made available to KongZhong a copy of all of its directors' and shareholders' minutes and/or resolutions. Each copy is true, correct, up-to-date and complete and contains all amendments and all minutes of meetings and actions taken by the shareholders and directors of Sharp Edge WFOE since the time of establishment of Sharp Edge WFOE up to, and including, the date of this Trust Agreement and accurately 17 <PAGE> reflects all transactions referred to in such minutes and/or resolutions; (e) has been duly authorized, executed and delivered approved by the Bank relevant authorities in the PRC as a wholly foreign-owned enterprise held by Sharp Edge, and enjoys the preferential treatment and benefits (including but not limited to the preferential tax treatment) available generally to wholly foreign-owned enterprises under applicable PRC laws; (f) has properly kept all books, records and registers required to be kept by it under any applicable laws, and the Bank (Delaware) and constitutes the valid and legally binding agreement copies of the Bank constitutional or organizational documents of Sharp Edge WFOE supplied to KongZhong are true, accurate, complete and the Bank up-to-date; (Delawareg) enforceable against it in accordance with its termshas filed or delivered all returns, subject particulars, resolutions and other documents required to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Bank and the Bank (Delaware) of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Bank and the Bank (Delaware), respectively, and do not require any approval of stockholders of the Bank or the Bank (Delaware) and such execution, delivery and performance will not (i) violate the Bank's or the Bank's (Delaware) Charter or By-laws, (ii) violate any provision of, or constitute, be filed with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking or trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or any order, judgment or decree applicable to the Bank or the Bank (Delaware);
(e) neither the authorization, execution or delivery by the Bank or the Bank (Delaware) of this Trust Agreement nor the consummation of any of the transactions by the Bank or the Bank (Delaware) (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect delivered to any governmental authority or agency under in respect of Sharp Edge WFOE; and (h) has not given any existing Federal law governing the corporate, banking or trust powers of the Bank or the Bank (Delaware)attorney currently in force, as appropriate in context, under the laws of the United States or the State of Delaware;
(f) and there are no proceedings pending or, outstanding authorities (express or implied) by which any Person may enter into any contract or commitment to do anything outside the best ordinary course of each business on behalf of the Bank's and the Bank's (Delaware) knowledge, threatened against or affecting the Bank or the Bank (Delaware) in any court or before any governmental authority, agency or arbitration board orSharp Edge WFOE.
Appears in 1 contract
Sources: Share Purchase Agreement