JAH » Topics » REPRESENTATIONS AND WARRANTIES

This excerpt taken from the JAH 8-K filed Aug 14, 2007.

REPRESENTATIONS AND WARRANTIES

Section 2.1 Representations and Warranties of Originators. Each of the Originators hereby represents and warrants to Buyer on the Closing Date and on each Purchase Date thereafter as to such Originator and the Receivables originated by it that:

(a) Existence and Power. Such Originator is duly organized under the laws of its jurisdiction of organization as specified in Exhibit II hereto. Such Originator is validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified to do business and is in good standing as a foreign corporation and has and holds all corporate or company power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted except where the failure to so qualify or so hold could not reasonably be expected to have an Originator Material Adverse Effect.

(b) Power and Authority; Due Authorization, Execution and Delivery. The execution and delivery by such Originator of this Agreement and each other Transaction Document to which it is a party, and the performance of its obligations hereunder and thereunder, and such Originator’s use of the proceeds of each Purchase made from it hereunder, are within its corporate powers and authority and have been duly authorized by all necessary action on its part. This Agreement and each other Transaction Document to which such Originator is a party has been duly executed and delivered by such Originator.

(c) No Conflict. The execution and delivery by such Originator of this Agreement and each other Transaction Document to which it is a party, and the performance of its obligations hereunder and thereunder do not contravene or violate (i) its Organizational Documents, (ii) any law, rule or regulation applicable to it, (iii) any restrictions under any agreement, contract or instrument to which it is a party or by which it or any of its property is bound, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in the creation or imposition of any Adverse Claim on assets of such Originator or its Subsidiaries (except as created hereunder) except, in any case, where such contravention or violation could not reasonably be expected to have an Originator Material Adverse Effect; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law other than compliance, if required, with any notice requirements which are satisfied prior to the Purchase Date with respect thereto.

(d) Governmental Authorization. Other than the filing of the financing statements required hereunder, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution and delivery by such Originator of this Agreement and each other Transaction Document to which it is a party and the performance of its obligations hereunder and thereunder.

(e) Actions, Suits. There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the actual knowledge of any of their officers,

 

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threatened against or affecting such Originator or any of its Subsidiaries which could reasonably be expected to have an Originator Material Adverse Effect or which seeks to prevent, enjoin or delay any Purchase. Other than any liability incident to any litigation, arbitration or proceeding that could not reasonably be expected to have an Originator Material Adverse Effect, such Originator and its Subsidiaries have no material contingent obligations not provided for or disclosed in the footnotes to its financial statements delivered prior to the Closing Date.

(f) Binding Effect. This Agreement and each other Transaction Document to which such Originator is a party constitute the legal, valid and binding obligations of such Originator enforceable against such Originator in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

(g) Accuracy of Information. Each Originator Representation, Originator Financial Statement, Compliance Certificate, Notice of Termination event, Notice of Originator Material Adverse Effect, receivables and Originator Information and Purchase and Contribution Report shall be complete and correct and fairly present the information contained therein in all material respects as of the date made, reported, or certified, as applicable (provided that the foregoing materiality threshold shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold), and do not contain any material misstatement of fact as of such date or omit to state a material fact or any fact necessary to make the information contained therein, taken as a whole with all other written information provided by Authorized Officers as of such date, not misleading as of such date

(h) Use of Proceeds. No portion of any Purchase Price payment hereunder will be used for a purpose that violates, or would be inconsistent with, any law, rule or regulation applicable to such Originator.

(i) Good Title. Upon creation by such Originator of each Receivable and immediately prior to its Purchase hereunder, such Originator (i) is the legal and beneficial owner of each such Receivable and its Collections and (ii) is the legal and beneficial owner of the Related Security with respect thereto or possesses a valid and perfected security interest therein, in each case, free and clear of any Adverse Claim, except as created by the Transaction Documents.

(j) Perfection. This Agreement, together with the filing of the financing statements contemplated hereby, is effective to transfer to Buyer (and Buyer shall acquire from such Originator): (i) legal and equitable title to, with the right to sell and encumber each Receivable originated by such Originator, whether now existing and hereafter arising, together with the Collections with respect thereto, and (ii) all of such Originator’s right, title and interest in the Related Security associated with each such Receivable, in each case, free and clear of any Adverse Claim, except as created by the Transactions Documents. There have been duly filed all financing statements or other similar instruments or documents necessary under the UCC (or any

 

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comparable law) of all appropriate jurisdictions solely to the extent required to perfect Buyer’s ownership interest in such Receivables, the Related Security and the Collections. In the event that, contrary to the mutual intent of such Originator and the Buyer, any Purchase of Purchased Assets hereunder is not characterized as a sale but rather as a collateral transfer for security (or the transactions contemplated hereby are characterized as a financing transaction), this Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Assets in favor of the Buyer, which security interest is prior to all other security interests, and enforceable as such as against creditors of and purchasers from such Originator.

(k) Chief Executive Office and Locations of Records. The location of the chief executive office of such Originator and the offices where it keeps all of its Receivable Files are located at the address(es) listed on Exhibit II or such other locations of which Buyer has been notified in accordance with Section 4.2(a) in jurisdictions where all action required by Section 4.2(a) has been taken and completed. Such Originator’s Federal Employer Identification Number and State Organizational Identification Number are correctly set forth on Exhibit II.

(l) Deposit and Concentration Accounts. The banks, account names and account numbers for all existing Lock-Boxes and Lock-Box Accounts are correctly listed on Exhibit III. Each of the Lock-Box Accounts has been transferred into Buyer’s name. Such Originator has not granted any Person, other than Buyer (and the Administrator, as its pledgee) dominion and control of any Lock-Box or Lock-Box Account, or the right to take dominion and control of any such account at a future time or upon the occurrence of a future event.

(m) Originator Material Adverse Effect. Since December 31, 2005, no event has occurred that would have an Originator Material Adverse Effect.

(n) Names. In the five (5) years preceding the Closing Date, such Originator has not used any corporate names, trade names or assumed names other than (i) the name in which it has executed this Agreement and (ii) as listed on Exhibit II.

(o) Ownership. Jarden owns, directly or indirectly, 100% of the issued and outstanding equity interests of Buyer and each Originator. All such equity interests are validly issued, fully paid and nonassessable, and there are no options, warrants or other rights to acquire securities of Buyer.

(p) Not an Investment Company. Such Originator is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or any successor statute.

(q) Compliance with Law. Such Originator has complied with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where the failure to so comply could not reasonably be expected to have an Originator Material Adverse Effect. Each Receivable, together with the Contract related thereto, does not contravene any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to truth in lending, fair credit billing, fair

 

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credit reporting, equal credit opportunity, fair debt collection practices and privacy), and no part of such Contract is in violation of any such law, rule or regulation, except where such contravention or violation could not reasonably be expected to have an Originator Material Adverse Effect.

(r) Compliance with Credit and Collection Policy. With regard to each Receivable, such Originator has complied in all material respects with its Credit and Collection Policy and the related Contract. Such Originator has not made any change to its Credit and Collection Policy, except in accordance with Section 9.2.3 of the Loan Agreement.

(s) Payments to Originator. With regard to each Receivable originated by such Originator, the Purchase Price received, or to be received, by such Originator constitutes, or will constitute, reasonably equivalent value in consideration therefor. No transfer hereunder by such Originator of any Receivable is or may be voidable under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.

(t) Enforceability of Contracts. As of the Purchase Date of each Receivable originated by such Originator, each Contract with respect to such Receivable is, on such date, effective to create, and has created, a legally valid and binding obligation of the related Obligor to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

(u) Accounting. The manner in which such Originator accounts for the transactions contemplated by this Agreement in its financial statements does not jeopardize the characterization of the transactions contemplated herein as being true sales.

(v) Solvency. Such Originator is Solvent.

(w) Receivables as Accounts. The Receivables constitute “accounts” within the meaning of the UCC.

(x) Priority. Other than the security interest granted to the Buyer pursuant to this Agreement, such Originator has not pledged, assigned, sold granted a security interest in, or otherwise conveyed any of the Purchased Receivables. Such Originator has not authorized the filing of and is not aware of any financing statements against such Originator that include a description of collateral covering the Purchased Receivables other than any financing statement (i) relating to the security interest granted to Administrator (for the benefit of the Secured Parties), hereunder or under the Existing Agreement, or (ii) that has been terminated. Such Originator is not aware of any judgment or tax lien filings against such Originator.

 

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ARTICLE III

This excerpt taken from the JAH 8-K filed Feb 16, 2007.

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Administrative Agent and the Lenders that:

5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a) is a corporation, limited partnership, partnership or limited liability company duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all governmental licenses, authorizations, consents and approvals to own its assets, carry on its business and to execute and deliver, and perform its obligations under, the Transaction Documents and the Loan Documents to which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, except where the failure so to qualify or be licensed could not reasonably be expected to have a Material Adverse Effect, and (d) is in compliance with all applicable Laws except where the failure to be in compliance with such Laws would not, in the aggregate, have a Material Adverse Effect.

5.02 Authorization; No Contravention. (a) Except as set forth on Schedule 5.02 (Conflicts), the execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other Organizational Action (including the consent of stockholders where required), and do not and will not (i) contravene or violate any of the terms of any of such Person’s Constituent Documents, (ii) conflict with or result in any breach or contravention of, constitute a default under, or result in or permit the termination or acceleration of,

 

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any material Contractual Obligation to which the Person is a party, (iii) result in the creation or imposition of any Lien upon any property of such Person or any of its Subsidiaries except for any Permitted Liens, or (iv) violate any (x) any Gaming Law, the violation of which could reasonably be expected to have a Material Adverse Effect, (y) any other Law (including Regulations T, U and X of the FRB) or (z) order, injunction, writ or decree of any Governmental Authority or arbitral award to which such Person or its property is subject.

(b) Except as set forth on Schedule 5.02 (Conflicts), the execution, delivery and performance by each Loan Party of each Transaction Document (other than the Loan Documents) to which such Person is party, have been duly authorized by all necessary corporate or other Organizational Action (including the consent of stockholders where required), and do not and will not (i) contravene or violate any of the terms of any of such Person’s Constituent Documents, (ii) conflict with or result in any breach or contravention of, constitute a default under, or result in or permit the termination or acceleration of, any material Contractual Obligation to which the Person is a party to the extent any of the foregoing circumstances described in this clause (ii) could not reasonably be expected to have a Material Adverse Effect, (iii) result in the creation or imposition of any Lien upon any property of such Person or any of its Subsidiaries except for any Permitted Liens, or (iv) violate any Law (including any Gaming Law), order, injunction, writ or decree of any Governmental Authority or arbitral award to which such Person or its property is subject, in each case, the violation of which could reasonably be expected to have a Material Adverse Effect.

This excerpt taken from the JAH 8-K filed Aug 30, 2006.

REPRESENTATIONS AND WARRANTIES

Section 2.1 Representations and Warranties of Originators. Each of the Originators hereby represents and warrants to Buyer on the Closing Date and on each Purchase Date thereafter as to such Originator and the Receivables originated by it that:

(a) Existence and Power. Such Originator is duly organized under the laws of its jurisdiction of organization as specified in Exhibit II hereto. Such Originator is validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified to do business and is in good standing as a foreign corporation and has and holds all corporate or company power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted except where the failure to so qualify or so hold could not reasonably be expected to have an Originator Material Adverse Effect.

(b) Power and Authority; Due Authorization, Execution and Delivery. The execution and delivery by such Originator of this Agreement and each other Transaction Document to which it is a party, and the performance of its obligations hereunder and thereunder, and such Originator’s use of the proceeds of each Purchase made from it hereunder, are within its corporate powers and authority and have been duly authorized by all necessary action on its part. This Agreement and each other Transaction Document to which such Originator is a party has been duly executed and delivered by such Originator.

(c) No Conflict. The execution and delivery by such Originator of this Agreement and each other Transaction Document to which it is a party, and the performance of its obligations hereunder and thereunder do not contravene or violate (i) its Organizational Documents, (ii) any law, rule or regulation applicable to it, (iii) any restrictions under any agreement, contract or instrument to which it is a party or by which it or any of its property is bound, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in the creation or imposition of any Adverse Claim on assets of such Originator or its Subsidiaries (except as created hereunder) except, in any case, where such contravention or violation could not reasonably be expected to have an Originator Material Adverse Effect; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law other than compliance, if required, with any notice requirements which are satisfied prior to the Purchase Date with respect thereto.

(d) Governmental Authorization. Other than the filing of the financing statements required hereunder, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution and delivery by such Originator of this Agreement and each other Transaction Document to which it is a party and the performance of its obligations hereunder and thereunder.

(e) Actions, Suits. There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the actual knowledge of any of their officers,

 

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threatened against or affecting such Originator or any of its Subsidiaries which could reasonably be expected to have an Originator Material Adverse Effect or which seeks to prevent, enjoin or delay any Purchase. Other than any liability incident to any litigation, arbitration or proceeding that could not reasonably be expected to have an Originator Material Adverse Effect, such Originator and its Subsidiaries have no material contingent obligations not provided for or disclosed in the footnotes to its financial statements delivered prior to the Closing Date.

(f) Binding Effect. This Agreement and each other Transaction Document to which such Originator is a party constitute the legal, valid and binding obligations of such Originator enforceable against such Originator in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

(g) Accuracy of Information. Each Originator Representation, Originator Financial Statement, Compliance Certificate, Notice of Termination event, Notice of Originator Material Adverse Effect, receivables and Originator Information and Purchase and Contribution Report shall be complete and correct and fairly present the information contained therein in all material respects as of the date made, reported, or certified, as applicable (provided that the foregoing materiality threshold shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold), and do not contain any material misstatement of fact as of such date or omit to state a material fact or any fact necessary to make the information contained therein, taken as a whole with all other written information provided by Authorized Officers as of such date, not misleading as of such date

(h) Use of Proceeds. No portion of any Purchase Price payment hereunder will be used for a purpose that violates, or would be inconsistent with, any law, rule or regulation applicable to such Originator.

(i) Good Title. Immediately prior to the Purchase from such Originator hereunder and upon the creation of each Receivable originated after the Initial Cutoff Date, such Originator (i) is the legal and beneficial owner of each such Receivable and its Collections and (ii) is the legal and beneficial owner of the Related Security with respect thereto or possesses a valid and perfected security interest therein, in each case, free and clear of any Adverse Claim, except as created by the Transaction Documents.

(j) Perfection. This Agreement, together with the filing of the financing statements contemplated hereby, is effective to transfer to Buyer (and Buyer shall acquire from such Originator): (i) legal and equitable title to, with the right to sell and encumber each Receivable originated by such Originator, whether now existing and hereafter arising, together with the Collections with respect thereto, and (ii) all of such Originator’s right, title and interest in the Related Security associated with each such Receivable, in each case, free and clear of any Adverse Claim, except as created by the Transactions Documents. There have been duly filed all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions solely to the extent required to perfect Buyer’s ownership interest in such Receivables, the Related Security and the Collections.

 

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(k) Chief Executive Office and Locations of Records. The location of the chief executive office of such Originator and the offices where it keeps all of its Receivable Files are located at the address(es) listed on Exhibit II or such other locations of which Buyer has been notified in accordance with Section 4.2(a) in jurisdictions where all action required by Section 4.2(a) has been taken and completed. Such Originator’s Federal Employer Identification Number and State Organizational Identification Number are correctly set forth on Exhibit II.

(l) Deposit and Concentration Accounts. The banks, account names and account numbers for all existing Lock-Boxes and Lock-Box Accounts are correctly listed on Exhibit III. Each of the Lock-Box Accounts has been transferred into Buyer’s name. Such Originator has not granted any Person, other than Buyer (and the Administrator, as its pledgee) dominion and control of any Lock-Box or Lock-Box Account, or the right to take dominion and control of any such account at a future time or upon the occurrence of a future event.

(m) Originator Material Adverse Effect. Since December 31, 2005, no event has occurred that would have an Originator Material Adverse Effect.

(n) Names. In the five (5) years preceding the Closing Date, such Originator has not used any corporate names, trade names or assumed names other than (i) the name in which it has executed this Agreement and (ii) as listed on Exhibit II.

(o) Ownership. Jarden owns, directly or indirectly, 100% of the issued and outstanding equity interests of Buyer and each Originator. All such equity interests are validly issued, fully paid and nonassessable, and there are no options, warrants or other rights to acquire securities of Buyer.

(p) Not an Investment Company. Such Originator is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or any successor statute.

(q) Compliance with Law. Such Originator has complied with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where the failure to so comply could not reasonably be expected to have an Originator Material Adverse Effect. Each Receivable, together with the Contract related thereto, does not contravene any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy), and no part of such Contract is in violation of any such law, rule or regulation, except where such contravention or violation could not reasonably be expected to have an Originator Material Adverse Effect.

 

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(r) Compliance with Credit and Collection Policy. With regard to each Receivable, such Originator has complied in all material respects with its Credit and Collection Policy and the related Contract. Such Originator has not made any change to its Credit and Collection Policy, except in accordance with Section 9.2.3 of the Loan Agreement.

(s) Payments to Originator. With regard to each Receivable originated by such Originator, the Purchase Price received, or to be received, by such Originator constitutes, or will constitute, reasonably equivalent value in consideration therefor. No transfer hereunder by such Originator of any Receivable is or may be voidable under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.

(t) Enforceability of Contracts. As of the Purchase Date of each Receivable originated by such Originator, each Contract with respect to such Receivable is, on such date, effective to create, and has created, a legally valid and binding obligation of the related Obligor to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

(u) Accounting. The manner in which such Originator accounts for the transactions contemplated by this Agreement in its financial statements does not jeopardize the characterization of the transactions contemplated herein as being true sales.

(v) Solvency. Such Originator is Solvent.

ARTICLE III

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