Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such Purchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent: (a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto. (b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller. (c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller. (d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator. (e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator. (f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement. (g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller. (h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security. (i) Copies of executed Blocked Account Agreements with the Blocked Account Banks. (j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request. (k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request. (l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request. (m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request. (n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement. (o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase. (p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter. (q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California. (r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California. (s) An executed Receivables Sale Agreement. (t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement. (u) Receipt and satisfactory review of the final Protiviti audit report. (v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Omnibus Amendment (Ingram Micro Inc), Receivables Purchase Agreement (Ingram Micro Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Initial Purchaser Agent shall have received each of the following (with copies to the Administrator), on or before the date of such Purchase, each (unless otherwise indicated) dated such date and each in form and substance (including the date thereof) satisfactory to the Administrative Agent Initial Purchaser and each Purchaser Agentthe Administrator:
(a) A counterpart of this Agreement and the other Transaction Documents The XXX Agreement, duly executed and delivered by the parties thereto., together with evidence reasonably satisfactory to the Initial Purchaser that all conditions precedent to the initial purchase of an Asset Interest thereunder (other than any condition relating to the effectiveness of the purchase commitment under this Agreement) shall have been met;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller KBK certifying (i) the names and true the signatures of the incumbent officers of the Seller KBK authorized to sign this Agreement and the other Transaction Documents to be delivered by it (other than on which certificate the Ancillary DocumentsInitial Purchaser may conclusively rely until such time as the Initial Purchaser shall receive a revised certificate meeting the requirements of this subsection (b)), (ii) to which it will be that the copy of the articles or certificate of incorporation of KBK attached thereto and duly certified by the Secretary of State of Delaware as of a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory recent date acceptable to the Administrative AgentInitial Purchaser is a complete and correct copy thereof and that the same has not been amended, modified or supplemented and is in full force and effect as of the Administrative Agent shall be entitled to rely on date thereof, (iii) that the last copy of the by-laws of KBK attached thereto is a complete and correct copy thereof and that such certificate delivered to it by by-laws have not been amended, modified or supplemented and are in full force and effect as of the Seller.
date thereof, and (d) Certified copies of (iiv) the resolutions of the KBK's board of directors (or its designated committee) of the Seller approving and Servicer authorizing the execution, delivery, delivery and performance by the Seller and Servicer KBK of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, and that such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date thereof;
(iic) all documents evidencing Copies of good standing certificates for KBK issued by the Secretary of State of Delaware and by the appropriate official of each other necessary corporate jurisdiction where such qualification is required under SECTION 6.1(B);
(d) Acknowledgment copies (or other evidence of filing reasonably acceptable to the Initial Purchaser) of (i) proper financing statements (Form UCC-1), filed on or prior to the date of the initial Purchase in the State of Texas and shareholder action and governmental approvalsin such other jurisdictions as the Initial Purchaser may reasonably request, substantially in the form of EXHIBIT 4.1(D) or in such other form as the Administrator may reasonably request (with such changes, if any, with respect to this Agreement as the Initial Purchaser may find acceptable in its discretion), naming KBK as the debtor and seller of Receivables and Related Assets, the other Transaction Documents (other than Initial Purchaser as the Ancillary Documents) to which it will be a secured party and purchaser and Purchaser as assignee; and (iiiii) such other, similar instruments or documents, if any, as may be necessary or, in the certificate of incorporation and by-laws opinion of the Seller Initial Purchaser, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by KBK to the Initial Purchaser of the Receivables and Originator.Related Assets;
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator Search reports provided in form and substance satisfactory writing to the Administrative AgentAdministrator by V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(fi) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements or other, similar instruments or documents that name KBK as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause CLAUSE (fD) above that name and in such other jurisdictions as the Seller or the Originator as debtorInitial Purchaser shall reasonably request, together with copies of such financing statementsstatements (none of which, other than (x) any of the financing statements or other instruments or documents described in CLAUSE (D) above, and similar search reports with respect to judgment liens(y) any financing statements which shall have been terminated (and of which the Initial Purchaser shall have received satisfactory evidence of termination), federal shall cover any Receivables or Related Assets), and (ii) listing all tax liens and judgment liens of (if any) filed against KBK in the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, described therein and showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Liens;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jf) A favorable opinion of Lily YV▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., special counsel to KBK, in substantially the form of EXHIBIT 4.1(F)-1 and a favorable opinion of M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, corporate special Louisiana counsel for the Originator and the Sellerto KBK, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex E EXHIBIT 4.1(F)-2; and
(g) Such other agreements, instruments, certificates, opinions and as to such other matters documents as the Administrative Agent Initial Purchaser or the Administrator may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (KBK Capital Corp), Purchase and Sale Agreement (KBK Capital Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Transferee shall have received on or before the date of such PurchasePurchase the following, each (unless otherwise indicated) dated such date, in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentTransferee:
(a) A counterpart a copy of the resolutions of the Board of Directors of the Transferor approving this Agreement and the other Transaction Operative Documents duly executed and to be delivered by it hereunder and the parties thereto.transactions contemplated hereby, certified by its secretary or assistant secretary;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary secretary or Assistant Secretary assistant secretary of the Seller Transferor certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents documents to be delivered by it hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until Transferee may conclusively rely until such time as the Administrative Agent receives a subsequent incumbency certificate Transferee shall receive from the Seller in form and substance satisfactory to Transferor a revised certificate meeting the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer requirements of this Agreement and the other Transaction Documents subsection (other than the Ancillary Documents) to which it will be a partyb)), (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and a copy of the other Transaction Documents (other than certificate of incorporation of the Ancillary Documents) to which it will be a party Transferor and (iii) a copy of the certificate of incorporation and Transferor’s by-laws laws;
(c) financing statements (Form UCC 1), in proper form for filing, naming Medallion Financial as the debtor/seller of the Seller Financial Medallion Loans and Originator.
(e) A certificate Related Assets, the Transferor as secured party/buyer/assignor and the Transferee as assignee thereof, or other documents, as may be necessary or, in the opinion of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentTransferee, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that or any comparable law to perfect the Transferor’s, and therefore, the Transferee’s, interests in the Financial Medallion Loans;
(d) financing statements (Form UCC 1), in proper form for filing, naming Freshstart as the debtor/seller of the Freshstart Medallion Loans and Related Assets, the Transferor as secured party/buyer/assignor and the Transferee as assignee thereof, or other documents, as may be necessary or, in the opinion of the Transferee, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the Transferor’s, and therefore, the Transferee’s, interests in the Freshstart Medallion Loans;
(e) financing statements (Form UCC 1), in proper form for filing, naming Medallion Capital as the debtor/seller of the Capital Medallion Loans and Related Assets, the Transferor as secured party/buyer/assignor and the Transferee as assignee thereof, or other documents, as may be necessary or, in the opinion of the Transferee, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the Transferor’s, and therefore, the Transferee’s, interests in the Capital Medallion Loans;
(f) financing statements (Form UCC 1), in proper form for filing, naming the Transferor as the debtor/seller of the Medallion Loans and Related Assets and the Transferee as secured party/buyer/assignor and the Administrative Agent and each Purchaser Agent as assignee thereof, or other documents, as may deem be necessary or, in the opinion of the Transferee, desirable under the UCC of all appropriate jurisdictions or desirable in order any comparable law to perfect (with a first priority) the Transferee’s interests of in the Administrative Agent (on behalf of itself, the Purchaser Agents Medallion Loans and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Related Assets;
(g) Acknowledgment copies, or time receipt-stamped receipt copies of proper terminations of financing statementsstatements (Form UCC 3), if any, necessary to release all security interests and other rights of any Person (other than the Seller in any Medallion Loans and the Administrative Agent) in the Pool Receivables, Contracts or Related Security Assets previously granted by the Originator Transferor, Medallion Financial, Freshstart or the Seller.Medallion Capital;
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable an opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇ LLP, counsel for to the Originator Transferor, the Transferee, Medallion Financial, regarding the characterization of the Financial Medallion Loans sold by Medallion Financial to the Transferor pursuant to the Medallion Financial Loan Sale Agreement, the Freshstart Medallion Loans sold by Freshstart to The Transferor pursuant to the Freshstart Loan Sale Agreement, the Capital Medallion Loans sold by Medallion Capital to the Transferor pursuant to the Medallion Capital Loan Sale Agreement and the Seller, addressed Medallion Loans sold or contributed by the Transferor to the Administrative AgentTransferee hereunder as true sales or contributions of, each Purchaserand not loans secured by, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F Financial Medallion Loans, the Freshstart Medallion Loans, the Capital Medallion Loans or the Medallion Loans, as applicable, and as to such other matters as the Administrative Agent may reasonably request.substantive nonconsolidation of either the Transferor or Medallion Financial with the Transferee in a bankruptcy of the Transferor and/or the Transferee; and
(li) A favorable an opinion of D▇▇▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇ LLP, counsel for the Seller and the Originator, addressed to the Administrative AgentTransferor, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to perfection, priority, certain corporate matters and such other matters as the Administrative Agent Transferee may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Loan Sale and Contribution Agreement, Loan Sale and Contribution Agreement (Medallion Financial Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness purchase of this Agreement Receivables by the Company hereunder is subject to the following conditions condition precedent that the Company and the Administrative Agent and each Purchaser Agent (as the Company’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Company and the Administrative Agent and each Purchaser Agent:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers or authorized committee thereof of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby, certified by the secretary or assistant secretary of such Originator;
(b) Good standing certificates (or applicable certificate or statement of like effect in any applicable jurisdiction howsoever named) for each Originator issued as of a recent date acceptable to the Company and the Administrative Agent by the Secretary of State of the Seller authorizing the execution, delivery, and performance by the Seller jurisdiction of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator’s organization;
(c) A certificate of the Secretary secretary or Assistant Secretary assistant secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Company and the Administrative Agent receives may conclusively rely until such time as the Servicer, the Company and the Administrative Agent shall receive from such Person a subsequent incumbency revised certificate from meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date acceptable to the Servicer, together with a copy of the by-laws or limited liability company agreement of such Originator (including all amendments and modifications thereto), each duly certified by the secretary or an assistant secretary of such Originator;
(e) Proper financing statements (Form UCC-1) in form ready to be filed on the Closing Date, naming each Originator as the debtor/seller and substance satisfactory to the Company as the buyer/assignor (and the Administrative Agent, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such Originator, as may be necessary or, in the Company’s or the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copiesAgent’s opinion, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that to perfect the Company’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest has been assigned to it hereunder;
(f) A written search report from a Person satisfactory to the Company and the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements that name any of the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated as the case may be prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and similar tax and judgment lien search reports with respect to judgment liensfrom all applicable jurisdictions (including, federal tax liens and without limitation liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Corporation) showing no evidence of such liens on filed against any Originator;
(g) Favorable opinions of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to ▇▇▇▇▇▇▇▇▇ and the Blocked Account Banks.
other Originators, (jii) A favorable opinion of Lily Y▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Pennsylvania counsel to ▇▇▇▇▇▇▇▇▇, (iii) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, special Tennessee counsel to ▇▇▇▇▇▇▇▇▇ Hardwood Flooring Company, and (iv) ▇▇▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed Deputy General Counsel to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator ▇▇ and the Sellerother Originators, addressed in form and substance satisfactory to the Company, the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially Purchaser;
(h) A Company Note in favor of each Originator, duly executed by the form Company;
(i) Evidence (i) of Annex F the execution and as delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, delivery and effectiveness of such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerCompany’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate satisfaction; and
(j) A certificate from an officer of Attorney Costs incurred or each Originator to be incurred by it through the closing proceedings (provided effect that such estimate Originator has placed on the most recent, and has taken all steps reasonably necessary to ensure that there shall not thereafter preclude final settling of accounts between be placed on subsequent, data processing reports an indication reasonably acceptable to the Seller Company and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, Agent indicating that the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect Receivables described therein have been sold to the Seller issued by Company pursuant to this Agreement and that an interest in the Secretaries same Receivables has been granted to the Administrative Agent (for the benefit of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as definedPurchasers) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Purchase Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Receivables Purchase Agreement and Purchase and Sale Agreement (Armstrong World Industries Inc), Purchase and Sale Agreement (Armstrong World Industries Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) and each Purchaser AgentPurchaser:
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Purchaser may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Seller Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and Tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Purchaser;
(h) Completed UCC search reportsa copy of an Intercompany Loan Agreement entered into by each Originator and the Buyer, dated on or shortly before duly executed by such Originator and the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Buyer; and
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers evidence of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit reportother Transaction Documents to be executed and delivered by it in connection herewith.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Centric Brands Inc.), Purchase and Sale Agreement (Centric Brands Inc.)
Conditions Precedent to Initial Purchase. The initial ---------------------------------------- Purchase after effectiveness of under this Agreement is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Buyer shall have received each of the following (with copies to the Trustee), on or before the date of such Purchasepurchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent Buyer and each Purchaser Agentthe Trustee:
(a) The Pooling and Servicing Agreement and the Series 1999-1 Supplement thereto, duly executed by the parties thereto, together with evidence reasonably satisfactory to the Buyer that all conditions precedent to the sale of the 1999-1 Series Certificate to the Initial Series 1999-1 Certificateholder thereunder (other than any condition relating to the effectiveness of the purchase commitment under this Agreement) shall have been met;
(b) A counterpart certificate of the Secretary of COMPUCOM certifying (i) a copy of the resolutions of its Board of Directors approving this Agreement and the other Transaction Documents duly executed and to be delivered by it hereunder and the parties thereto.
transactions contemplated hereby; (b) Certified copies of (iii) the resolutions names and true signatures of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (other than on which certificate the Ancillary DocumentsTrustee, the Certificateholders and Buyer may conclusively rely until such time as the Trustee shall receive from COMPUCOM, as the case may be, a revised certificate meeting the requirements of this subsection (b)); (iii) to which it will be -------------- a party, copy of its by-laws; and (iiiv) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.;
(c) A certificate The Articles of Incorporation of COMPUCOM, duly certified by the Secretary or Assistant Secretary of the Seller certifying the names and true signatures State of the officers Delaware, as of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.recent date;
(d) Certified Acknowledgment copies of (i) the resolutions or time stamped receipt copies, of the board proper financing statements (Form UCC-1) that have been duly executed and name COMPUCOM as the debtor and seller and the Buyer as the secured party and purchaser (and the Trustee, for the benefit of directors (or its designated committeethe Certificateholders, as assignee of the Buyer) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement Receivables and the other Transaction Documents (other than Related Rights or other, similar instruments or documents, as may be necessary or, in Servicer's or the Ancillary Documents) Trustee's opinion, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the Buyer's ownership interest in all Receivables and Related Rights in which an ownership interest may be assigned to it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.hereunder;
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator search report provided in form and substance satisfactory writing to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial PurchaseTrustee, listing all effective financing statements that name COMPUCOM as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above and in such other jurisdictions that name the Seller or the Originator as debtorTrustee shall -------------- reasonably request, together with copies of such financing statementsstatements (none of which shall cover any Trust Assets), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Trustee showing no evidence of such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.filed against COMPUCOM;
(if) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable An opinion of Lily Y▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, corporate special counsel for the Originator and the Sellerto COMPUCOM, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form reasonably acceptable to the Agent;
(g) A pro forma Purchase Report, prepared in respect of Annex E the proposed --- ----- initial Purchase, assuming an Initial Cut-Off Date of March 31, 1999;
(h) The Buyer Note in favor of COMPUCOM, duly executed by the Buyer;
(i) A certificate from an officer of COMPUCOM to the effect that Servicer and as COMPUCOM have placed on the most recent, and have taken all steps reasonably necessary to such ensure that there shall be placed on subsequent, summary master control data processing reports the following legend (or the substantive equivalent thereof): THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO CSI FUNDING, INC. PURSUANT TO A RECEIVABLES CONTRIBUTION SALE AGREEMENT, DATED AS OF May 7, 1999, AS AMENDED FROM TIME TO TIME, BETWEEN COMPUCOM SYSTEMS, INC. AND CSI FUNDING, INC.; AND AN OWNERSHIP AND SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND ASSIGNED TO NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE, PURSUANT TO A POOLING AND SERVICING AGREEMENT, DATED AS OF May 7, 1999, AMONG COMPUCOM SYSTEMS, INC., CSI FUNDING, INC., AND NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE; and
(j) Such other matters agreements, instruments, UCC financing statements, certificates, opinions and other documents as the Administrative Buyer, the Trustee or the Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Receivables Contribution and Sale Agreement (Compucom Systems Inc), Receivables Contribution and Sale Agreement (Safeguard Scientifics Inc Et Al)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer and the Administrative Agent and each Purchaser Agent (as the Buyer’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Master Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Purchaser may conclusively rely until such time as the Master Servicer, the Buyer and the Administrative Agent (as the Buyer’s assignee) shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Seller Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Buyer and the Administrative Agent;
(h) a copy of a Subordinated Note in favor of each Originator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it duly executed by the Seller.Buyer; and
(d) Certified copies of (i) the resolutions of the board of directors evidence (or its designated committeei) of the Seller execution and Servicer authorizing delivery by each of the execution, delivery, and performance by the Seller and Servicer parties thereto of this Agreement and each of the other Transaction Documents (other than the Ancillary Documents) to which be executed and delivered by it will be a party, in connection herewith and (ii) all documents evidencing other necessary corporate that each of the conditions precedent to the execution, delivery and shareholder action and governmental approvals, if any, with respect to this Agreement and the effectiveness of such other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory has been satisfied to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller Buyer’s and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
’s (h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityBuyer’s assignee) satisfaction.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Receivables Sale Agreement (Gray Television Inc), Receivables Sale Agreement (Nabors Industries LTD)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent (as the Buyer’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, Material Adverse Effect with respect to this Agreement the Originator and the other Transaction Documents (other than Receivables sold by it to the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Buyer hereunder;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Purchaser (as the Buyer’s assignee) may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser (as the Buyer’s assignee) shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor secured party (and the Administrative Agent, for the benefit of the Purchasers, as assignee secured party) of the Receivables sold by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s (as the Buyer’s assignee) reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Originator pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on (as the last such certificate delivered to it by the Originator.
(fBuyer’s assignee) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable (as the Buyer’s assignee);
(h) a copy of a Subordinated Note in order to perfect favor of each Originator, duly executed by the Buyer; and
(with a first priorityi) the interests evidence (i) of the Administrative Agent (on behalf of itself, the Purchaser Agents execution and the Purchasers) contemplated delivery by the Agreement and to perfect (with a first priority) the interests each of the Seller as contemplated parties thereto of each of the other Transaction Documents to be executed and delivered by it in connection herewith and (ii) that each of the Receivables Sale Agreement.
(g) Acknowledgment copiesconditions precedent to the execution, or time stamped receipt copies delivery and effectiveness of proper terminations of financing statements, if any, necessary such other Transaction Documents has been satisfied to release all security interests and other rights of any Person (other than the Seller Buyer’s and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
’s (h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityBuyer’s assignee) satisfaction.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Mallinckrodt PLC), Purchase and Sale Agreement (Mallinckrodt PLC)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) and each Purchaser AgentLender:
(a) A counterpart a copy of the resolutions or written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator’s organization or formation;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate of formation or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller, the Buyer as the assignor secured party/buyer and the Administrative Agent, for the benefit of the Secured Parties, as assignee secured party of the Receivables and the Related Rights sold or contributed, or purported to be sold or contributed, by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Seller Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect Lender;
(with h) a first prioritycopy of an Intercompany Loan Agreement entered into by each Originator and the Buyer, duly executed by such Originator and the Buyer; and
(i) the interests evidence (x) of the Administrative Agent (on behalf of itself, the Purchaser Agents execution and the Purchasers) contemplated delivery by the Agreement and to perfect (with a first priority) the interests each of the Seller as contemplated parties thereto of each of the other Transaction Documents to be executed and delivered by it in connection herewith and (y) that each of the Receivables Sale Agreement.
(g) Acknowledgment copiesconditions precedent to the execution, or time stamped receipt copies delivery and effectiveness of proper terminations of financing statements, if any, necessary such other Transaction Documents has been satisfied to release all security interests and other rights of any Person (other than the Seller Buyer’s and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
’s (h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityBuyer’s assignee) satisfaction.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 2 contracts
Sources: Sale and Contribution Agreement (EnLink Midstream Partners, LP), Sale and Contribution Agreement (EnLink Midstream, LLC)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated such date or another recent date acceptable to the Administrator and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart of this Agreement and the other Transaction Documents This Agreement, duly executed and delivered by each of the parties thereto.hereto;
(b) Certified copies of The Sale Agreement, duly executed by KBK and Seller, together with (i) the resolutions of the board of directors of the Seller authorizing the execution, deliveryclosing documents required to be delivered thereunder, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect evidence reasonably satisfactory to this Agreement and the other Transaction Documents (other Administrator that Seller shall have received from KBK capital contributions in an aggregate amount of not less than the Ancillary Documents) to which it will be a party and (iii) the certificate $5,000,000 in exchange for common stock of incorporation and by-laws of the Seller.;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying (i) the names and true the signatures of the incumbent officers of the Seller authorized to sign this Agreement and the other Transaction Documents to be delivered by it (other than on which certificate the Ancillary DocumentsAdministrator and Purchaser may conclusively rely until such time as the Administrator shall receive a revised certificate meeting the requirements of this subsection (c)), (ii) to which it will be that the copy of the articles or certificate of incorporation of Seller attached thereto and duly certified by the Secretary of State of Delaware as of a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory recent date acceptable to the Administrative AgentAdministrator is a complete and correct copy thereof and that the same has not been amended, modified or supplemented and is in full force and effect as of the Administrative Agent shall be entitled to rely on date thereof, (iii) that the last copy of the by-laws of Seller attached thereto is a complete and correct copy thereof and that such certificate delivered to it by by-laws have not been amended, modified or supplemented and are in full force and effect as of the Seller.
date thereof, and (d) Certified copies of (iiv) the resolutions of the Seller's board of directors (or its designated committee) of the Seller approving and Servicer authorizing the execution, delivery, delivery and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, and that such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date thereof;
(iid) all documents evidencing Copies of good standing certificates for Seller issued by the Secretary of State of Delaware and by the appropriate official of each other necessary corporate jurisdiction where such qualification is required under SECTION 6.01(B);
(e) Acknowledgment copies (or other evidence of filing reasonably acceptable to the Administrator) of (i) proper financing statements (Form UCC-1), filed on or prior to the date of the initial Purchase in the State of Texas and shareholder action and governmental approvalsin such other jurisdictions as the Administrator may reasonably request, substantially in the form of EXHIBIT 5.01(E) or in such other form as the Administrator may reasonably request (with such changes, if any, with respect to this Agreement as the Administrator may find acceptable in its discretion), naming Seller as the debtor and seller of an undivided percentage interest in the other Transaction Documents (other than Pool Receivables and Related Assets and Purchaser as the Ancillary Documents) to which it will be a secured party and purchaser; and (iiiii) such other similar instruments or documents, if any, as may be necessary or, in the certificate of incorporation and by-laws opinion of the Seller Administrator, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect Purchaser's undivided percentage interest in the Pool Receivables and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.Related Assets;
(f) Acknowledgment copiesSearch reports provided in writing to the Administrator by V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priorityi) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements or other, similar instruments or documents that name Seller as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause SUBSECTION (fE) above that name and in such other jurisdictions as the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statementsstatements (none of which, other than (1) any of the financing statements or other instruments or documents described in CLAUSE (E) above, and similar search reports with respect to judgment liens(2) any financing statements which shall have been terminated (and of which the Administrator shall have received satisfactory evidence of termination), federal shall cover any Receivables or Related Assets), and (ii) listing all tax liens and judgment liens of (if any) filed against any debtor referred to in CLAUSE (I) above in the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, described therein and showing no such liens on any Liens;
(g) Duly executed copies of (i) Lock-Box Agreements with each of the Lock-Box Banks, covering the Lock-Box Accounts described in SECTION 7.01(I), (ii) post-office box assignments for each post-office box into which Collections on the Pool AssetsReceivables may be deposited and (iii) the Collection Account Agreement with the Collection Account Bank;
(h) A favorable opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., Pool Receivablesspecial counsel to KBK and Seller, Contracts or Related Security.in substantially the form of EXHIBIT 5.01(H)-1 and a favorable opinion of general counsel to KBK and Seller, in substantially the form of EXHIBIT 5.01(H)-2;
(i) Copies Such powers of executed Blocked Account Agreements with attorney, substantially in the Blocked Account Banks.form of EXHIBIT 5.01(I) (or in such other form as the Administrator may reasonably request), as the Administrator shall reasonably request to enable the Administrator to collect all amounts due under any and all Pool Receivables;
(j) A favorable opinion PRO FORMA Information Package, prepared in respect of Lily Y▇▇ ▇▇▇▇▇▇▇the proposed initial Purchase, corporate counsel for as of the Originator and the Sellerinitial Cut-Off Date of April 11, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.1997;
(k) A favorable opinion Written approval by the Credit Bank of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator this Agreement and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.transactions contemplated hereby;
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of Standard & Poor's Ratings Services and M▇▇▇▇'▇ Investors Service, Inc. confirming that the rating agencies then rating existing ratings of the Commercial Paper Notes of each Conduit Purchaser confirming the rating of its Notes will remain in effect after giving effect to the transactions contemplated by this Agreement.hereby;
(um) Receipt and satisfactory review of A computer file containing all account information related to the final Protiviti audit report.Receivables; and
(vn) Evidence that Such other agreements, instruments, certificates, opinions and other documents as the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedAdministrator may reasonably request.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (KBK Capital Corp), Receivables Purchase Agreement (KBK Capital Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart An Originator Assignment Certificate in the form of this Agreement and the other Transaction Documents Exhibit D from each Originator, duly completed, executed and delivered by the parties thereto.each Originator;
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors (or a duly constituted and authorized committee thereof) of each Originator approving the Seller authorizing Transaction Documents to be delivered by it and the executiontransactions contemplated hereby and thereby, delivery, and performance certified by the Seller Secretary or Assistant Secretary of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator;
(c) Good standing certificates for each Originator issued as of a recent date acceptable to the Servicer by the Secretary of State of the jurisdiction of such Originator's organization and the jurisdiction where such Originator maintains it's chief executive office;
(d) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Servicer and the Company may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this clause (d));
(e) The certificate or articles of incorporation or other organizational document of each Originator duly certified by the Secretary of State of the Originator authorized to sign this Agreement and jurisdiction of such Originator's organization as of a recent date, together with a copy of the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agentby-laws of such Originator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it each duly certified by the Secretary or an Assistant Secretary of such Originator.;
(f) Acknowledgment copies, or time stamped receipt copies Originals of proper financing statementsstatements (Form UCC-1) that have been duly executed and name each Originator as the debtor/seller and the Company as the secured party/purchaser (and the Administrator, duly filed on as assignee of the Company) of the Receivables generated by such Originator as may be necessary or, in the Servicer's or before the date of such initial Purchase Administrator's opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company's ownership interest in all Receivables and such other rights, accounts, instruments and moneys (with a first priorityincluding, without limitation, Related Security) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and in which an ownership or security interest may be assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary A written search report from a Person satisfactory to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Company listing all effective financing statements that name the Originators as debtors or sellers and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in the foregoing clause (f) above that name the Seller or the Originator as debtor), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (f), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Servicer showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jh) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇Blank Rome Comisky & McCauley LLP, corporate counsel for the Originator and the Seller, addressed to the Administrative AgentOriginators, each Purchaser, each Purchaser Agent in form and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇substa▇▇▇ ▇▇▇▇ & Wisf▇▇▇▇▇▇ ▇▇, counsel for o the Originator Servicer and the SellerAdministrator;
(i) A Company Note in favor of each Originator, addressed duly executed by the Company; and
(j) A certificate from an officer of each Originator to the Administrative Agenteffect that the Servicer and such Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each Purchasersubsequent, each Purchaser Agent and each Alternate Purchaser substantially in data processing report that it generates which are of the form of Annex F and as type that a proposed purchaser or lender would use to such evaluate the Receivables, the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 21, 2001, AS THE SAME MAY FROM TO TIME TO TIME BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED, BETWEEN CERTAIN ENTITIES LISTED ON SCHEDULE I THERETO, AS ORIGINATORS, AND YORK RECEIVABLES FUNDING LLC, AS PURCHASER, AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO THE ADMINISTRATOR ON BEHALF OF THE PURCHASERS PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF DECEMBER 21, 2001 AS THE SAME MAY FROM TO TIME TO TIME BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED, AMONG YORK RECEIVABLES FUNDING LLC, AS SELLER, YORK INTERNATIONAL CORPORATION, AS SERVICER, MARKET STREET FUNDING CORPORATION, LIBERTY STREET FUNDING CORP., THE BANK OF NOVA SCOTIA, THE MEMBERS OF THE VARIOUS OTHER PURCHASER GROUPS FROM TIME TO TIME A PARTY THERETO, AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR."; and
(k) Such other matters approvals, opinions or documents as the Administrative Agent Administrator or the Issuer may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (York International Corp /De/)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase from each Seller hereunder is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent (1) BSX shall have received contributed the Initial Contributed Receivables and the associated Related Security to the Buyer, and the Buyer shall have issued 100% of its authorized outstanding Equity Interests to BSX, (2) the Buyer shall have executed and delivered a Subordinated Note in favor of such Seller, and (3) the Buyer shall have received, on or before such Seller's Applicable Closing Date, the date of such Purchasefollowing, each (unless otherwise indicated) dated such Seller's Applicable Closing Date, and each in form form, substance and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Buyer and each Purchaser Agentthe Agents:
(a) A counterpart copy of this Agreement the resolutions of such Seller's board of directors, board of managers, general partners or analogous Persons of such Seller approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.a Responsible Officer of such Seller;
(b) Certified copies A good standing certificate for such Seller issued as of (i) a recent date by the resolutions Secretary of State of the board state of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.its formation;
(c) A certificate of the Secretary or Assistant Secretary a Responsible Officer of the such Seller certifying the names and true signatures of the officers of the Seller officers, partners, managers or members authorized on such Seller's behalf to sign this Agreement the Transaction Documents to be delivered by it, on which certificate the Buyer and the other Transaction Documents Servicer (other than if the Ancillary DocumentsServicer is not such Seller) to which it will be may conclusively rely until such time as the Buyer and the Servicer shall receive from such Seller a party. Until revised certificate meeting the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.requirements of this subsection (c);
(d) Certified Recently certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary such Seller's Organic Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.;
(e) A certificate Copies of the Secretary or Assistant Secretary of proper financing statements (Form UCC-1) that have been duly executed by such Seller, naming such Seller as seller, the Originator certifying Buyer as the names purchaser, and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from as assignee of the Originator Buyer, in form each case, describing in reasonable detail the Receivables and substance satisfactory the Related Security to be sold by such Seller to the Administrative AgentBuyer pursuant to this Agreement or other similar instruments or documents, the Administrative Agent shall as may be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase necessary under the UCC of all appropriate jurisdictions that or any comparable law of all appropriate jurisdictions to perfect the Buyer's ownership interest in such Receivables and Related Security;
(f) A written search report from a Person satisfactory to the Servicer and the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective UCC financing statements that name such Seller as debtor, seller or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e) shall cover any Receivable or any Related Asset related to any Receivable) which is to be sold or contributed by such Seller to the Buyer hereunder, and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens the Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no evidence of such liens on any filed against such personal property other than those liens for which UCC termination statements have been delivered hereunder;
(g) Evidence (i) of the Pool Assetsexecution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, Pool Receivables, Contracts delivery and effectiveness of such other Transaction Documents has been satisfied to the Buyer's satisfaction;
(h) An opinion of such Seller's counsel covering such matters as Buyer or Related Security.Administrative Agent (as Buyer's assignee) may reasonably request; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed such Seller to the Administrative Agent, each Purchaser, each Purchaser Agent effect that the Servicer and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence have placed on the date of most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary aged trial balance reports the initial Purchase under this Agreement.
following legend (o) Monthly Receivables Report representing or the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date substantive equivalent thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.): "PROPERTY OF BOSTON SCIENTIFIC FUNDING LLC"
Appears in 1 contract
Sources: Receivables Sale Agreement (Boston Scientific Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer and the Administrative Agent and each Purchaser Agent (as the Buyer’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Master Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Master Servicer, the Buyer and the Administrative Agent (as the Buyer’s assignee) shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Lenders, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Seller Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Buyer and the Administrative Agent;
(h) a copy of a Subordinated Note in favor of each Originator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it duly executed by the Seller.Buyer; and
(d) Certified copies of (i) the resolutions of the board of directors evidence (or its designated committeei) of the Seller execution and Servicer authorizing delivery by each of the execution, delivery, and performance by the Seller and Servicer parties thereto of this Agreement and each of the other Transaction Documents (other than the Ancillary Documents) to which be executed and delivered by it will be a party, in connection herewith and (ii) all documents evidencing other necessary corporate that each of the conditions precedent to the execution, delivery and shareholder action and governmental approvals, if any, with respect to this Agreement and the effectiveness of such other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory has been satisfied to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller Buyer’s and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
’s (h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityBuyer’s assignee) satisfaction.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Sale Agreement (Sinclair Broadcast Group, LLC)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following satisfaction of the conditions precedent that the Administrative Agent and each Purchaser Agent shall have received specified under this Section 5.01 on or before the date Initial Funding Date (any or all of such Purchasewhich may be waived by the Administrator in its sole discretion).
(a) The Administrator shall have received the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(ai) A counterpart Certified copies of resolutions of the Board of Directors, Managers or members, as applicable, of each of the Seller, the Transferor, the Originators and the Servicer authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, ;
(ii) all Certified copy of the organizational documents evidencing other necessary corporate action and governmental approvalsgoverning instruments, if anyas applicable, with respect to this Agreement of each of the Seller, the Transferor, the Originators and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and Servicer;
(iii) the certificate of incorporation and by-laws Good standing certificates for each of the Seller., the Transferor, the Originators and the Servicer issued as of a recent date acceptable to the Administrator by the Secretary of State of the jurisdiction where the Seller, the Transferor, each Originator and the Servicer, respectively, is organized;
(civ) A certificate of the Secretary or an Assistant Secretary of each of the Seller Seller, the Transferor, the Originators and the Servicer certifying the names and true signatures of the its officer or officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party. Until ;
(v) Such proper financing statements (Form UCC-1), to be filed against each of the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentSeller, the Administrative Agent shall Transferor and the Originators as may be entitled to rely on necessary or, in the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions opinion of the board of directors (or its designated committee) of the Seller and Servicer authorizing the executionAdministrator, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC or any comparable law of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the Purchaser’s interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Assets;
(hvi) Completed UCC A search reports, dated on or shortly before report provided in writing to the date of such initial PurchaseAdministrator, listing all effective financing statements that name any of the Originators, the Transferor or the Seller as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fe) above and in such other jurisdictions that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.);
(ivii) Copies Favorable opinions of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and to the Seller, addressed the Transferor, the Originators and the Servicer, in form and substance reasonably satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent Administrator;
(viii) A written agreement between Servicer and each Alternate Purchaser substantially in the Administrator as to the form and required content of Annex E the Information Package, and a pro forma Information Package, prepared in respect of the proposed initial Purchase, as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month no more than 3 Business Days prior to the initial Purchase.Initial Funding Date; and
(pix) Evidence Fully executed copies of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs the First Tier Agreement, the Second Tier Agreement, the Account Control Agreement, the FSC Guaranty and expenses the Cap Agreement, each of which agreements shall be in form and substance reasonably satisfactory to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.Administrator;
(qb) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating Transaction Accounts shall have been established; and
(c) the Notes of each Conduit Purchaser confirming Stock Purchase Agreement shall have been executed and delivered by the rating of its Notes after giving effect parties thereto in a form substantially similar to the transactions contemplated by this Agreement.
form disclosed to the Administrator prior to the date hereof (u) Receipt and satisfactory review or with such changes as could not reasonably be expected to have a Material Adverse Effect), a copy of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding such Stock Purchase Agreement shall have been released in fulldelivered to the Administrator, all outstanding “Advances” (and each Originator shall have become a direct or an indirect subsidiary of Charming Shoppes Inc. as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedcontemplated thereby.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Charming Shoppes Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseInitial Closing Date, the following, each (unless otherwise indicated) dated the Initial Closing Date, and each in form form, substance and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser the Agent:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of each Seller approving the Seller authorizing Transaction Documents to be delivered by it and the executiontransactions contemplated hereby and thereby, delivery, and performance certified by the secretary or assistant secretary of such Seller;
(b) Good standing certificate for each Seller issued as of this Agreement and a recent date by the other Transaction Documents (other than Secretary of State of the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate jurisdiction of its incorporation and by-laws principal place of the Seller.business;
(c) A certificate of the Secretary secretary or Assistant Secretary assistant secretary of the each Seller certifying the names and true signatures of the officers of the Seller authorized on such Seller's behalf to sign this Agreement the Transaction Documents to be delivered by it (on which certificate the Company and Master Servicer may conclusively rely until such time as the Company and the other Transaction Documents Master Servicer shall receive from such Seller a revised certificate meeting the requirements of this subsection (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.c);
(d) Certified copies The articles of (i) incorporation of each Seller, duly certified by the resolutions appropriate authority of the board jurisdiction of directors (or its designated committee) incorporation as of a recent date, together with a copy of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.such Seller, duly certified by such Seller's secretary or an assistant secretary;
(e) A certificate Copies of the Secretary or Assistant Secretary proper financing statements (Form UCC-1) that have been duly executed and name each Seller as the assignor and the Company as the assignee (and Purchaser as assignee of the Originator certifying the names and true signatures Company) of the officers of the Originator authorized to sign this Agreement Receivables and the other Transaction Documents (other than Related Rights or other, similar instruments or documents, as may be necessary or, in the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentCompany's, the Administrative Agent shall be entitled to rely on Master Servicer's or the last such certificate delivered to it by the Originator.
(f) Acknowledgment copiesAgent's opinion, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights sold or transferred to the Company hereunder;
(with f) A written search report from a first priority) Person satisfactory to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Master Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Agent listing all effective financing statements that name each Seller as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e) shall cover any Receivable sold or transferred to the Company hereunder or any Related Right related to any Receivable), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax the Master Servicer and the Agent showing no evidence of such liens and liens filed against any Seller;
(g) Evidence (i) of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any execution and delivery by each of the Pool Assetsparties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, Pool Receivablesdelivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction;
(h) Evidence that the Seller Notes in favor of each Seller, Contracts or Related Security.have been duly executed and delivered by the Company; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed each Seller to the Administrative Agent, each Purchaser, each Purchaser Agent effect that the Master Servicer and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence have placed on the date of most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the initial Purchase under this Agreementfollowing legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO CADMUS RECEIVABLES CORP. PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF OCTOBER 26, 1999, AS AMENDED FROM TIME TO TIME, BETWEEN THE SELLERS NAMED THEREIN, CADMUS RECEIVABLES CORP. AND CADMUS COMMUNICATIONS CORPORATION AND AN OWNERSHIP AND SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND ASSIGNED TO WACHOVIA BANK, N.A. AS AGENT ON BEHALF OF BLUE RIDGE ASSET FUNDING CORPORATION, PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF OCTOBER 26, 1999, AMONG BLUE RIDGE ASSET FUNDING CORPORATION, CADMUS RECEIVABLES CORP.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereofCADMUS COMMUNICATIONS CORPORATION AND WACHOVIA BANK, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.N.A.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cadmus Communications Corp/New)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Buyer, the Administrator (as the Buyer’s assignee) and each Purchaser Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Buyer and the Administrator (as the Buyer’s assignee) and each Purchaser Agent:
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrator (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentServicer, the Administrative Buyer, the Administrator (as the Buyer’s assignee) and each Purchaser Agent may conclusively rely until such time as the Servicer, the Buyer, the Administrator (as the Buyer’s assignee) and each Purchaser Agent shall be entitled to rely on receive from such Person a revised certificate meeting the last such requirements of this clause (c));
(d) the certificate delivered to it or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator.’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(fe) Acknowledgment copies, or time stamped receipt copies of proper financing statementsstatements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrator, duly filed on for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or before the date of such initial Purchase Administrator’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Buyer’s ownership interest in such Receivables and the Purchasers) contemplated by the Agreement and Related Rights in which an ownership or security interest has been assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC a written search reports, dated on or shortly before the date of such initial Purchase, report listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions Corporation) from a Person satisfactory to the Buyer and the Administrator (as the Administrative Agent or any Purchaser Agent may request, Buyer’s assignee) showing no evidence of such liens on filed against any Originator;
(g) favorable opinions of counsel to the Pool AssetsOriginators, Pool Receivablesin form and substance reasonably satisfactory to the Buyer, Contracts or Related Security.the Administrator and each Purchaser Agent;
(h) a Subordinated Note in favor of each Originator, duly executed by the Buyer; and
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers Evidence of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit reportother Transaction Documents to be executed and delivered by it in connection herewith.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (LyondellBasell Industries N.V.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Servicer (on the Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:Servicer (acting on the Company's behalf):
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of each Originator approving the Purchase Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.Secretary or Assistant Secretary of such Originator;
(b) Certified copies Good standing certificates for each Originator issued as of (i) a recent date acceptable to the resolutions Servicer by the Secretary of State of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator's incorporation;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Purchase Documents to be delivered by it (on which certificate the Servicer and the Company may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this clause (d));
(d) The certificate or articles of incorporation of each Originator, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Originals of the proper financing statements (Form UCC-1) that have been duly executed and name each Originator authorized to sign this Agreement as the debtor/seller and the Company as the secured party/purchaser (and Three Rivers Funding Corporation, as assignee of the Company) of the Purchased Receivables generated by such Originator as may be necessary or desirable under the UCC of all appropriate jurisdictions to perfect the Company's ownership interest in all Purchased Receivables and such other Transaction Documents rights, accounts, instruments and moneys in which an ownership or security interest may be assigned to it hereunder;
(other than f) A written search report from a Person satisfactory to the Ancillary DocumentsServicer listing all effective financing statements that name the Originators as debtors or sellers and that are filed in the jurisdictions in which filings were made pursuant to the foregoing clause (f), together with copies of such financing statements (none of which, except for those described in the foregoing clause (f), shall cover any Purchased Receivable or any Related Rights which are to be sold to the Company hereunder), and tax and judgment lien search reports from a Person satisfactory to the Servicer showing no evidence of such liens filed against any Originator;
(g) Favorable opinions of (a) ▇▇▇▇▇ ▇. Sudbury, General Counsel of CMC, and (b) ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from Originators and the Originator Company, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Administrator; and
(h) Completed UCC search reports, dated on or shortly before the date A Company Note in favor of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review duly executed by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this AgreementCompany.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase and contribution hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseInitial Purchase Date, the following, each (unless otherwise indicated) dated the Initial Purchase Date, and each in form form, substance and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser Agentthe Administrator:
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of each Seller approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.its Secretary or Assistant Secretary;
(b) Certified copies Good standing certificate for each Seller issued as of (i) a recent date by the resolutions Secretary of State of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of its incorporation and by-laws its principal place of the Seller.business;
(c) A certificate of the Secretary or Assistant Secretary of the each Seller certifying the names and true signatures of the officers of the Seller authorized on such Seller's behalf to sign this Agreement the Transaction Documents to be delivered by it (on which certificate the Company, the Master Servicer and the other Transaction Documents (other than Administrator may conclusively rely until such time as the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentCompany, the Administrative Agent Master Servicer and the Administrator shall be entitled to rely on receive from such Seller a revised certificate meeting the last such certificate delivered to it by the Seller.requirements of this subsection (c);
(d) Certified copies The articles of (i) incorporation of each Seller, duly certified by the resolutions Secretary of State of the board jurisdiction of directors (or its designated committee) incorporation as of the Seller and Servicer authorizing the executiona recent date, delivery, and performance by the Seller and Servicer together with a copy of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and its by-laws of the Seller and Originator.laws, duly certified by its Secretary or an Assistant Secretary;
(e) A certificate Any documents (including, without limitation, financing statements) required by the Administrator to be filed, registered or recorded in order to create, for the benefit of the Secretary or Assistant Secretary Company (and the Administrator on behalf of the Originator certifying the names and true signatures Purchaser, as assignee of the officers of Company), a first priority perfected ownership interest in all Transferred Receivables and Related Rights in which the Originator authorized ownership interest may be assigned to sign this Agreement it hereunder, in each office in each jurisdiction in which such filings, registration and recordations are required or, in the Administrator's opinion, desirable to perfect such ownership interest, and the other Transaction Documents (other than the Ancillary Documents) to which it Administrator shall be satisfied that all such filings, registrations and recording will be a party. Until completed promptly following the Administrative Agent receives a subsequent incumbency certificate from the Originator Initial Purchase Date and that all necessary filing, registration, recording and other fees and all taxes and expenses related to such filings, registrations and recordings will be promptly paid in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it full by the Originator.Sellers;
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before A written search report from a Person satisfactory to the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Master Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Administrator listing all effective financing statements that name any Seller as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings are to in clause be made pursuant to the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e) and those relating to the Existing Securitization shall cover any Transferred Receivable or any Related Right related to any such Receivable), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens the Master Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Administrator showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Seller;
(g) Evidence (i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming of the rating other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of its Notes after giving effect the conditions precedent to the transactions contemplated by this Agreement.execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company's and the Administrator's satisfaction; and
(uh) Receipt and satisfactory review A certificate from an officer of each Seller to the final Protiviti audit report.
(v) Evidence effect that the “Liens” created Master Servicer and such Seller have taken all steps reasonably necessary to ensure that there shall be placed on all summary master control data processing reports generated after the Initial Purchase Date the following legend (and as defined) under or the GE Receivables Funding Agreement have been released in fullsubstantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN OTHER THAN CERTAIN EXCLUDED RECEIVABLES HAVE BEEN SOLD TO LFI RECEIVABLES CORPORATION PER THAT PURCHASE AND SALE AGREEMENT, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedDATED AS OF MARCH 23, 1999, AS AMENDED, RESTATED OR REPLACED FROM TIME TO TIME, AND AN OWNERSHIP AND SECURITY INTEREST IN SUCH RECEIVABLES HAS BEEN GRANTED TO BLUE RIDGE ASSET FUNDING CORPORATION, PER THAT RECEIVABLES PURCHASE AGREEMENT DATED AS OF MARCH 23, 1999, AS AMENDED, RESTATED OR REPLACED FROM TIME TO TIME. CONTACT WACHOVIA BANK, N.A., ADMINISTRATOR, FOR FURTHER INFORMATION.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lifestyle Furnishings International LTD)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and each Purchaser Agent the Administrator (as the Company’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser Agent:the Administrator (as the Company’s assignee):
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates for each Originator issued as of a recent date reasonably acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State of the Seller authorizing the execution, delivery, jurisdiction of such Originator’s organization and performance by the Seller each jurisdiction where such Originator conducts a substantial amount of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator (as the Company’s assignee) may conclusively rely until such time as the Servicer, the Company and the Administrator (as the Company’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation, certificate of formation or other organizational document of each Originator duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or limited liability company agreement of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Originals of the proper financing statements (Form UCC-1) that have been duly authorized and name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the buyer/assignor (other than and the Ancillary DocumentsAdministrator, for the benefit of the Purchasers, as secured party/assignee) to which it will of the Receivables generated by such Originator as may be a party. Until necessary or, in the Administrative Agent receives a subsequent incumbency certificate from Company’s or the Originator in form and substance satisfactory to the Administrative AgentAdministrator’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership interest in all Receivables and Related Rights (with including, without limitation, Related Security) in which an ownership or security interest has been assigned to the Company hereunder;
(f) A written search report from a first priority) Person reasonably satisfactory to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the PurchasersAdministrator (as the Company’s assignee) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the Closing Date), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and similar tax and judgment lien search reports with respect from a Person reasonably satisfactory to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Company showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jg) A favorable opinion of Lily Y▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Originators, in form and substance reasonably satisfactory to the Company and the Administrator (as the Company’s assignee);
(h) A Company Note in favor of each Originator, duly executed by the Company;
(i) Evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company’s and the Administrator’s (as the Company’s assignee) reasonable satisfaction; and
(j) Evidence that such Originator has placed on the most recent, and has taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master data processing reports the following legend (or the substantive equivalent thereof): “THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN CONTRIBUTED OR SOLD TO SWIFT RECEIVABLES COMPANY II, LLC ▇▇▇▇▇▇▇▇ TO A PURCHASE AND SALE AGREEMENT, DATED AS OF JUNE 8, 2011, BETWEEN THE ▇▇▇▇▇▇▇▇▇▇▇ NAMED THEREIN AND SWIFT RECEIVABLES COMPANY II, LLC; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO PNC BANK, NATIONAL ASSOCIATION, FOR THE BENEFIT OF THE PURCHASERS UNDER THE RECEIVABLES PURCHASE AGREEMENT, DATED AS OF JUNE 8, 2011, AMONG SWIFT RECEIVABLES COMPANY II, LLC, SWIFT TRANSPORTATION SERVICES, LLC, AS ▇▇▇▇▇▇▇▇, corporate counsel for the Originator and the SellerTHE VARIOUS PURCHASERS AND PURCHASING AGENTS FROM TIME TO TIME PARTY THERETO AND PNC BANK, addressed to the Administrative AgentNATIONAL ASSOCIATION, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably requestAS ADMINISTRATOR AND LC BANK.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.”
Appears in 1 contract
Sources: Purchase and Sale Agreement (SWIFT TRANSPORTATION Co)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Servicer (on the Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
Servicer (a) A counterpart acting on the Company's behalf): An Originator Assignment Certificate in the form of this Agreement and Exhibit C from the other Transaction Documents Originator, duly completed, executed and delivered by the parties thereto.
(b) Certified copies Originator; A copy of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Originator approving the execution, delivery, and performance Transaction Documents to be delivered by the Seller of this Agreement it and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby and thereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of certified by the Secretary or Assistant Secretary of the Seller certifying Originator; Good standing certificates for the names and true signatures Originator issued as of a recent date acceptable to the Servicer by the Secretary of State of the officers jurisdiction of the Seller authorized Originator's organization and each jurisdiction where the Originator is qualified to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) transact business; A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Servicer and the Company may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this clause (d)); The certificate or articles of incorporation or other organizational document of the Originator authorized to sign this Agreement duly certified by the Secretary of State of the jurisdiction of the Originator's organization as of a recent date, together with a copy of the by-laws of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator; Originals of the proper financing statements (Form UCC-1) that have been duly executed and name the Originator as the debtor/seller and the other Transaction Documents Company as the secured party/purchaser (other than and the Ancillary DocumentsIssuer, as assignee of the Company) to which it will be a party. Until of the Administrative Agent receives a subsequent incumbency certificate from Receivables generated by the Originator as may be necessary or, in the Servicer's or the Administrator's opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest may be assigned to it hereunder; A written search report from a Person satisfactory to the Servicer listing all effective financing statements that name the Originator as debtor or seller and that are filed in the jurisdictions in which filings were made pursuant to the foregoing clause (f), together with copies of such financing statements (none of which, except for those described in the foregoing clause (f), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and tax and judgment lien search reports from a Person satisfactory to the Servicer showing no evidence of such liens filed against the Originator; A favorable opinion of Dechert, counsel to the Originator, and an opinion of in-house counsel to the Originator each in form and substance satisfactory to the Administrative AgentServicer and the Administrator; A Company Note in favor of the Originator, duly executed by the Company; A certificate from an officer of the Originator to the effect that the Servicer and the Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, data processing report that it generates which are of the type that a proposed purchaser or lender would use to evaluate the Receivables, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
following legend (f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reportssubstantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN CONTRIBUTED OR SOLD PURSUANT TO A PURCHASE AND SALE AGREEMENT, dated on or shortly before the date of such initial PurchaseDATED AS OF DECEMBER 20, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor2001, together with copies of such financing statementsAS AMENDED, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ BETWEEN ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & WTECHNOLOGY CORPORATION, AND CRS FUNDING CORP., AS PURCHASER; AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO MARKET STREET FUNDING CORPORATION PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF DECEMBER 20, 2001 AS AMENDED, AMONG CRS FUNDING CORP., AS SELLER, ▇▇▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION, counsel for the Originator AS SERVICER, MARKET STREET FUNDING CORPORATION, AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR."; and the SellerSuch other approvals, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters opinions or documents as the Administrative Agent Administrator or the Issuer may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Carpenter Technology Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator in form (including all amendments and substance satisfactory to modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Lenders, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copiesAgent’s reasonable opinion, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(with f) a first priority) written search report from a Person reasonably satisfactory to the interests of Buyer and the Administrative Agent (on behalf of itself, as the Purchaser Agents and the PurchasersBuyer’s assignee) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions as PBGC) from a Person satisfactory to the Buyer and the Administrative Agent or any Purchaser Agent may request, (as the Buyer’s assignee) showing no evidence of such liens on filed against any Originator;
(g) favorable opinions of counsel to the Pool AssetsOriginators, Pool Receivablesin form and substance reasonably satisfactory to the Buyer and the Administrative Agent;
(h) a copy of a Subordinated Note in favor of each Originator, Contracts or Related Security.duly executed by the Buyer; and
(i) Copies evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed Blocked Account Agreements with and delivered by it in connection herewith and (ii) that each of the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementBuyer’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Quintiles Transnational Holdings Inc.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase and contribution hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseInitial Closing Date, the following, each (unless otherwise indicated) dated the Initial Closing Date, and each in form form, substance and substance (including the date thereof) reasonably satisfactory to the Company and the Administrative Agent and each Purchaser Agent:
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of each Seller approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.Secretary or Assistant Secretary of such Seller;
(b) Certified copies Good standing certificate for each Seller issued as of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance a recent date by the Seller Secretary of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate State of such Seller's state of incorporation and by-laws state of the Seller.its principal place of business;
(c) A certificate of the Secretary or Assistant Secretary of the each Seller certifying the names and true signatures of the officers of the Seller authorized on such Seller's behalf to sign this Agreement the Transaction Documents to be delivered by it (on which certificate the Company and Master Servicer (if other than Lennox) may conclusively rely until such time as the Company and the other Transaction Documents Master Servicer shall receive from such Seller a revised certificate meeting the requirements of this subsection (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.c);
(d) Certified copies The articles of (i) incorporation of each Seller, duly certified by the resolutions Secretary of State of such Seller's state of incorporation as of a recent date, together with a copy of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of each Seller, duly certified by the Seller and Originator.Secretary or an Assistant Secretary of such Seller;
(e) A certificate Copies of the Secretary or Assistant Secretary proper financing statements (Form UCC-1) that have been duly executed and name each Seller as the assignor and the Company as the assignee (and Purchaser as assignee of the Originator certifying the names and true signatures Company) of the officers of the Originator authorized to sign this Agreement Receivables and the other Transaction Documents (other than Related Rights sold or contributed by such Seller or other, similar instruments or documents, as may be necessary or, in the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to Master Servicer's or the Administrative Agent's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that or any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which the ownership interest may be assigned to it hereunder;
(f) A written search report from a Person satisfactory to the Master Servicer and the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the any Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.debtor or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lennox International Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that Servicer (on the Administrative Agent and each Purchaser Agent Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to Servicer (acting on the Administrative Agent and each Purchaser Agent:Company's behalf):
(a) A counterpart An Originator Assignment Certificate in the form of this Agreement and EXHIBIT C from the other Transaction Documents Originator, duly completed, executed and delivered by the parties thereto.Originator;
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Originator approving the executionTransaction Documents to be delivered by it and the transactions contemplated hereby and thereby, delivery, and performance certified by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the respective Secretary or Assistant Secretary of the Seller certifying Originator;
(c) Good standing certificates for the names and true signatures Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the officers jurisdiction of the Seller authorized to sign this Agreement Originator's incorporation and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last jurisdiction where such certificate delivered to it by the Seller.Originator's chief executive office is located;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate Servicer and the Company may conclusively rely until such time as Servicer shall receive from such Person a revised certificate meeting the requirements of this SUBSECTION (d));
(e) The certificate or articles of incorporation or other organizational document of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentOriginator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it duly certified by the Secretary of State of the jurisdiction of such Originator.'s incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator;
(f) Acknowledgment copies, or time stamped receipt copies Originals of the proper financing statementsstatements (Form UCC-1) that have been duly executed and name the Originator as the debtor/seller and the Company as the secured party/purchaser (and the Administrator, duly filed on as assignee of the Company) of the Receivables generated by the Originator as may be necessary or, in Servicer's or before the date of such initial Purchase Administrator's opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company's ownership interest in all Receivables and such other rights, accounts, instruments and moneys (with a first priorityincluding, without limitation, Related Security) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and in which an ownership or security interest may be assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary A written search report from a Person satisfactory to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Servicer listing all effective financing statements that name the Originator as debtor or seller and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing SUBSECTION (f) above that name the Seller or the Originator as debtor), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing SUBSECTION (f), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Servicer showing no evidence of such liens on any of filed against the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jh) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator Carton & ▇▇▇▇▇▇▇ and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇. ▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed in form and substance satisfactory to Servicer and the Administrator;
(i) The Company Note in favor of the Originator, duly executed by the Company; and
(j) A certificate from an officer of the Originator to the Administrative Agent, each Purchaser, each Purchaser Agent effect that the Servicer and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator have placed on the most recent, and the Sellerhave taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent data processing report or other books and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers records that it generates which are of the Seller’s and type that a proposed purchaser or lender would use to evaluate the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4Receivables, the Fee Letter and following legend (or the Engagement Lettersubstantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD BY THE ORIGINATOR TO LG&E RECEIVABLES LLC PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF FEBRUARY 6, 2001, AS AMENDED, BETWEEN LOUISVILLE GAS AND ELECTRIC COMPANY, AND LG&E RECEIVABLES LLC; AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO MARKET STREET FUNDING CORPORATION, THREE RIVERS FUNDING CORPORATION AND THE OTHER PURCHASERS PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF FEBRUARY 6, 2001, AS AMENDED, AMONG LOUISVILLE GAS AND ELECTRIC COMPANY, AS THE SERVICER, LG&E RECEIVABLES LLC, MARKET STREET FUNDING CORPORATION, THREE RIVERS FUNDING CORPORATION AND THE OTHER PURCHASERS THEREUNDER AND PNC BANK, NATIONAL ASSOCIATION AS ADMINISTRATOR.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Sources: Purchase and Sale Agreement (Louisville Gas & Electric Co /Ky/)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such PurchasePurchase the following, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart copy of the resolutions of the Board of Directors of each of the Seller and the Originator authorizing this Agreement and the Originator Purchase Agreement and the other Transaction Documents duly executed and documents to be delivered by it hereunder and thereunder and the parties theretotransactions contemplated hereby and thereby, certified by its Secretary or Assistant Secretary.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) each of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized on its behalf to sign this Agreement and the Originator Purchase Agreement and the other Transaction Documents documents to be delivered by it hereunder and thereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Purchasers and the Banks may conclusively rely unless and until such time as the Agent shall be entitled to rely on receive from the last such Seller or the Originator a replacement certificate delivered to it by meeting the Originatorrequirements of this subsection (b)).
(fc) Acknowledgment copies, copies or time stamped receipt copies of proper financing statementsFinancing Statements (Form UCC-1), duly filed on or before the date of such initial Purchase under the UCC of all appropriate jurisdictions or any comparable law that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the ownership and security interests of the Administrative Agent (on behalf of itself, the Purchaser Agents in all Receivables and Related Security contemplated by this Agreement and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Originator Purchase Agreement.
(gd) Acknowledgment copies, copies or time stamped receipt copies of proper terminations of financing statementsFinancing Statements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person person in (other than i) the Seller Receivables and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Seller or the Originator or and (ii) the collateral security referred to in Section 2.10 previously granted by the Seller.
(he) Completed UCC Certified copies of requests for information or copies (Form UCC-11) (or a similar search reportsreport certified by a party acceptable to the Agent), dated on or shortly before a date reasonably near to the date of such the initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that which name the Seller or the Originator (under its present name and any previous name) as debtordebtor and which are filed in the jurisdictions in which filings were made pursuant to subsection (c) above, together with copies of such financing statementsstatements (none of which, and similar search reports with respect other than the financing statements filed pursuant to judgment lienssubsection (c), federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Related Security or Contracts or Related Securitythe collateral security referred to in Section 2.10).
(if) Copies of executed Blocked Account Agreements with the Blocked Account BanksThe Fee Agreement referred to in Section 2.05.
(jg) A favorable opinion or opinions of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator Seller and the SellerOriginator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex Exhibit E and as to such other matters as the Administrative Agent may reasonably request.
(kh) A favorable opinion of D▇▇▇▇ ▇▇▇▇ Kaye, Scholer, Fierman, Hays & W▇▇▇▇Hand▇▇▇, LLP, counsel for the Originator and the Sellerth▇ ▇▇ent, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(i) A letter agreement with Fleet National Bank acknowledging the Agent's dominion and control over the Collection Account, duly executed by Fleet National Bank, the Originator and the Seller.
(j) A letter agreement acknowledging the Agent's dominion and control over the Supplemental Collection Account, duly executed by the Originator and the Seller.
(k) An executed copy of the Originator Purchase Agreement.
(l) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the by-laws of the Seller, counsel for certified by the Seller and Secretary or Assistant Secretary of the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably requestSeller.
(m) A favorable opinion copy of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and certificate or articles of incorporation of the Seller, addressed certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedfrom such Secretary of State or other official, dated as of a recent date.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (North Atlantic Energy Corp /Nh)
Conditions Precedent to Initial Purchase. The initial ---------------------------------------- Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated (or dated as of) such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) This Agreement, duly executed by the Seller and the Servicer;
(b) An executed copy of the Receivables Transfer Agreement, substantially in the form of Exhibit 5.01(b), together with the closing --------------- documents required to be delivered thereunder;
(c) Good standing certificates issued by the Secretary of State of Nevada (in the case of the Seller) and Secretaries of State of California and Pennsylvania (in the case of the Servicer) and dated as of recent dates acceptable to the Agent;
(d) A counterpart certificate of the Secretary or an Assistant Secretary of each of the Seller and the Servicer certifying:
(i) a copy of its articles or certificates of incorporation, certified by the Secretary of State or other appropriate official of its state of incorporation as of a recent date acceptable to the Agent;
(ii) a copy of its by-laws;
(iii) a copy of the resolutions of its Board of Directors, approving this Agreement and the other Transaction Documents duly executed and to be delivered by it hereunder or pursuant hereto and the parties thereto.transactions contemplated hereby and thereby; and
(biv) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents (other than to be delivered by it hereunder or pursuant hereto on which certificate the Ancillary Documents) to which it will be a party. Until Agent and the Administrative Purchaser may conclusively rely until such time as the Agent receives a subsequent incumbency certificate shall receive from the Seller in form and substance satisfactory to or the Administrative AgentServicer, as applicable, a revised certificate meeting the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.requirements of this subsection (d);
(de) Certified Acknowledgment copies of proper Financing Statements (iForm UCC-1), substantially in the form attached hereto as Exhibit 5.01(e)(i) the resolutions of the board of directors and Exhibit ------------------ ------- 5.01(e)(ii) (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvalswith such modifications, if any, with respect as may be necessary or appropriate ----------- to this Agreement conform to the law, customary practice or standard forms of a particular jurisdiction), filed on or prior to the date of the initial Purchase, (1) naming the Originator as the debtor and seller of Receivables, the Seller as secured party and purchaser and the other Transaction Documents Purchaser as assignee, and (other than 2) the Ancillary Documents) to which it will be a Seller as the debtor and seller of Receivables or an undivided interest therein and the Purchaser as the secured party and (iii) purchaser, or other, similar instruments or documents, as may be necessary or, in the certificate of incorporation and by-laws opinion of the Seller Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the Seller's interest in the Pool Receivables and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement Related Property, Purchaser's Interest and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory security interest granted to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.Purchaser under Article IX hereof; ----------
(f) Acknowledgment copiesA search report or reports provided in writing to the Agent by CT Corporation, as of a recent date (or time stamped receipt copies of proper financing statements, duly filed on or before dates) acceptable to the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or Yuasa as debtor and that are filed in the Originator jurisdictions in which filings were made pursuant to subsection ---------- (e) above and in such other jurisdictions as debtorthe Agent may reasonably request, --- together with copies of such financing statements, and similar search reports statements (none of which (other than the financing statements described in subsection (e) above) shall cover any Receivables or Contracts or interests therein or Collections or proceeds of any thereof);
(g) Duly executed copies of Lock-Box Agreements with respect to judgment liens, federal tax liens and liens each of the Pension Benefit Guaranty Corporation Lock-Box Banks, in substantially the form of Exhibit 5.01(g) or in such jurisdictions other -------------- form as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.approve in writing;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jh) A favorable opinion of Lily Y▇▇ Tucci & ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for to each of the Originator Seller and the SellerServicer (as to corporate, addressed to the Administrative AgentUCC and other matters), each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.Exhibit 5.01(h); ---------------
(li) A favorable opinion of DTucci & ▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for to the Seller and the OriginatorServicer (as to certain bankruptcy issues), addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters Exhibit 5.01(i); ---------------
(j) Such sublicenses as the Administrative Agent may reasonably request.shall require with regard to all programs leased by the Seller and the Servicer and used in the servicing of the Receivables Pool;
(mk) A favorable opinion Such powers of Morrisattorney as the Agent shall reasonably request to enable the Agent to collect all amounts due under any and all Pool Receivables, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser which powers of attorney shall be substantially in the form of Annex H and as to Exhibit 5.01(k) or in such other matters form as --------------- the Administrative Agent may reasonably request.;
(l) A Periodic Report as of the most recent Fiscal Period End Date (in which the Purchaser's Interest and the components thereof shall be calculated after giving effect to the initial Purchase);
(m) Evidence that the Purchaser shall have entered into the Liquidity Funding Agreement and all conditions to the effectiveness thereof shall have been met or duly waived by the parties thereto;
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters Written confirmation from each of the rating agencies then rating the Commercial Paper Notes that the Purchaser's execution and delivery of each Conduit Purchaser confirming this Agreement and its acquisition of the rating Purchaser's Interest hereunder will not cause the ratings of its the Commercial Paper Notes after giving effect to the transactions contemplated by this Agreement.be reduced or withdrawn;
(uo) Receipt The Purchaser shall have received the Structuring Fee; and satisfactory review of (p) Such other agreements, instruments, certificates, opinions and other documents as the final Protiviti audit reportAgent may reasonably request.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Securitization Agreement (Yuasa Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of under this Agreement is subject to the following conditions condition precedent that the Administrative Agent and each Initial Purchaser Agent shall have received each of the following (with copies to the Administrator), on or before the date of such Purchasepurchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent Initial Purchaser and each Purchaser Agentthe Administrator:
(a) The Receivables Purchase Agreement, duly executed by the parties thereto, together with evidence reasonably satisfactory to the Initial Purchaser that all conditions precedent to the initial Purchase of an undivided interest thereunder (other than any condition relating to the effectiveness of the purchase commitment under this Agreement) shall have been met;
(b) A counterpart certificate of the Secretary of Maxtor certifying (i) a copy of the resolutions of its Board of Directors approving this Agreement and the other Transaction Documents duly executed and to be delivered by it hereunder and the parties thereto.
transactions contemplated hereby; (b) Certified copies of (iii) the resolutions names and true signatures of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (other than on which certificate the Ancillary DocumentsAdministrator and Initial Purchaser may conclusively rely until such time as the Administrator shall receive from Maxtor a revised certificate meeting the requirements of this subsection (b)); (iii) to which it will be a party, copy of its by-laws; and (iiiv) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.;
(c) A certificate The Certificate of Incorporation of Maxtor, duly certified by the Secretary or Assistant Secretary of the Seller certifying the names and true signatures State of the officers Delaware, as of the Seller authorized a recent date acceptable to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.Administrator;
(d) Certified Acknowledgment copies of (i) the resolutions or time stamped receipt copies, of the board proper financing statements (Form UCC-1) that have been duly executed and name Maxtor as the debtor and seller and the Initial Purchaser as the secured party and purchaser (and the Administrator, for the benefit of directors (or its designated committeethe Purchaser, as assignee of the Initial Purchaser) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement Receivables and the other Transaction Documents (other than Related Rights or other, similar instruments or documents, as may be necessary or, in Servicer's or the Ancillary Documents) Administrators's opinion, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the Initial Purchaser's ownership interest in all Receivables and Related Rights in which an ownership interest may be assigned to it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.hereunder;
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names search report provided in writing to and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it approved by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial PurchaseAdministrator, listing all effective financing statements that name Maxtor as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above and in such other jurisdictions that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statementsstatements (none of which shall cover any Pool Assets), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax Servicer and the Administrator showing no evidence of such liens and liens filed against Maxtor;
(f) Duly executed copies of the Pension Benefit Guaranty Corporation Lock-Box Agreements with the Lock-Box Banks;
(g) A pro forma Purchase Report, prepared in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any respect of the Pool Assetsproposed initial Purchase, Pool Receivablesassuming an Initial Cut-Off Date of June 30, Contracts or Related Security.1998;
(h) The Initial Purchaser Note in favor of Maxtor, duly executed by the Initial Purchaser;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇Such other agreements, corporate counsel for the Originator instruments, UCC financing statements, certificates, opinions and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters documents as the Administrative Agent Initial Purchaser or the Administrator may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and the Administrator (as the Company’s assignee) and each Purchaser Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent Company and the Administrator (as the Company’s assignee) and each Purchaser Agent:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates for each Originator issued as of a recent date acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State of the Seller authorizing the execution, delivery, jurisdiction of such Originator’s organization and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) each jurisdiction where such Originator is qualified to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transact business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator (as the Company’s assignee) may conclusively rely until such time as the Servicer, the Company and the Administrator (as the Company’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation or other organizational document of each Originator duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Originals of the proper financing statements (Form UCC-1) that have been duly authorized and name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the buyer/assignor (other than and the Ancillary DocumentsAdministrator, for the benefit of the Purchasers, as secured party/assignee) to which it will of the Receivables generated by such Originator as may be a party. Until necessary or, in the Administrative Agent receives a subsequent incumbency certificate from Company’s or the Originator in form and substance satisfactory to the Administrative AgentAdministrator’s opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (with including, without limitation, Related Security) in which an ownership or security interest has been assigned to it hereunder;
(f) A written search report from a first priority) Person satisfactory to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the PurchasersAdministrator (as the Company’s assignee) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated as the case may be prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Company showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jg) A favorable opinion of Lily Y▇▇ S▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ Loop & WK▇▇▇▇▇▇▇, LLP, counsel for to the Originator Originators, in form and substance satisfactory to the Company, the Administrator and each Purchaser Agent;
(h) A Company Note in favor of each Originator, duly executed by the Company;
(i) Evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company’s and the Seller, addressed Administrator’s (as the Company’s assignee) satisfaction; and
(j) A certificate from an officer of each Originator to the Administrative Agenteffect that such Originator has placed on the most recent, each Purchaserand has taken all steps reasonably necessary to ensure that there shall be placed on subsequent, each Purchaser Agent and each Alternate Purchaser substantially in summary master control data processing reports the form of Annex F and as to such other matters as following legend (or the Administrative Agent may reasonably request.
(l) A favorable opinion of Dsubstantive equivalent thereof): “THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO C▇▇▇▇▇ RECEIVABLES LLC PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF AUGUST 30, 2006, BETWEEN THE ORIGINATORS NAMED THEREIN AND C▇▇▇▇▇ & WRECEIVABLES LLC; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO PNC BANK, NATIONAL ASSOCIATION, FOR THE BENEFIT OF THE PURCHASERS UNDER THE RECEIVABLES PURCHASE AGREEMENT, DATED AS OF AUGUST 30, 2006, AMONG C▇▇▇▇▇▇▇▇ RECEIVABLES LLC, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & TC▇▇▇▇▇▇▇ TIRE & RUBBER COMPANY, special Delaware counsel for the Originator and the SellerAS INITIAL SERVICER, addressed to the Administrative AgentTHE VARIOUS PURCHASERS AND PURCHASER AGENTS FROM TIME TO TIME PARTY THERETO AND PNC BANK, each PurchaserNATIONAL ASSOCIATION, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably requestAS ADMINISTRATOR.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cooper Tire & Rubber Co)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) Good standing (and foreign qualification, as applicable) certificates for each Originator and Seller issued by the Secretaries of State of the jurisdictions of their incorporation or formation and their respective principal places of business;
(b) A counterpart certificate of the Secretaries of Feed and Seller in form and substance reasonably satisfactory to the Administrator certifying (i) a copy of the resolutions of its Board of Directors approving this Agreement and the other Transaction Documents duly executed and to be delivered by it hereunder and the parties thereto.
transactions contemplated hereby; (b) Certified copies of (iii) the resolutions names and true signatures of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (other than on which certificate the Ancillary DocumentsAdministrator and the Purchasers may conclusively rely until such time as the Administrator shall receive from Feed or Seller, as the case may be, a revised certificate meeting the requirements of this subsection (b)); (iii) to which it will be a partycopy of its by-laws, operating agreement or equivalent organizational document(s); and (iiiv) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.;
(c) A certificate The Certificate of Formation of each of Seller and Feed, duly certified by the Secretary of State of the Secretary or Assistant Secretary jurisdiction of the Seller certifying the names and true signatures its formation, as of the officers of the Seller authorized a recent date reasonably acceptable to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.Administrator;
(d) Certified Acknowledgment copies or time-stamped receipt copies, of proper financing statements (Form UCC-1), filed prior to the date of the initial Purchase, naming (i) the resolutions each of the board Originators as the debtor and seller of directors (or its designated committee) Receivables, Seller as the secured party and purchaser and Administrator, for the benefit of the Seller and Servicer authorizing Purchasers, as the execution, deliveryassignee, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) Seller as the debtor and seller of Receivables or an undivided interest therein and Administrator, for the benefit of the Purchasers, as the secured party and purchaser, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrator, desirable under the UCC or any comparable law of all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect appropriate jurisdictions to this Agreement perfect Seller's and the other Transaction Documents (other than Purchasers' interests in the Ancillary Documents) Pool Assets, all of which financing statements the Administrator is hereby authorized to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.file;
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names search report provided in writing to and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it approved by the Originator.
(f) Acknowledgment copiesAdministrator, which approval shall not be unreasonably withheld or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchasedelayed, listing all effective financing statements that name any Originator or Seller as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above and in such other jurisdictions that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivablesunless executed termination statements and/or partial releases with respect thereto have been delivered to the Administrator), Contracts and tax and judgment lien search reports from a Person reasonably satisfactory to Servicer and the Administrator showing no evidence of such liens filed against any Originator or Related Security.Seller;
(f) Duly executed copies of the Lockbox Agreements with the Lockbox Banks;
(g) Favorable opinions of (i) Copies in-house counsel to each of executed Blocked Account Agreements with the Blocked Account Banks.
Originators and Seller as to corporate authority and (jii) A favorable opinion of Lily Y▇▇ Faegre & ▇▇▇▇▇▇▇▇ LLP, corporate special counsel for to each of the Originator Originators and the SellerSeller as to all other legal matters, addressed in form and substance reasonably satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent Administrator and each Alternate Purchaser substantially in the form its counsel;
(h) Such powers of Annex E and as to such other matters attorney as the Administrative Agent may Administrator shall reasonably request.request to enable the Administrator to collect all amounts due under any and all Pool Assets;
(ki) A favorable opinion pro forma Servicer Report, prepared as of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the date of the proposed initial Purchase, counsel for the Originator and the Sellerassuming a Cut-Off Date of December 7, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.2001;
(lj) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory Reasonably satisfactory results of a review and audit, conducted by CoBank, of the Originators' (as deemed necessary by the Purchasers of the Seller’s and the Originator’s Administrator) collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including reasonably satisfactory results of a review of the Seller’s and the Originator’s Originators' operating locations and reasonably satisfactory review and approval of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.Purchase;
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(pk) Evidence of payment by the Seller out of the proceeds of the Initial Purchase of all accrued and unpaid fees Fees (including those contemplated by the Fee Letter), all of the costs and expenses of this transaction accrued or received prior to the extent then due and payable on the date thereofhereof, together with Attorney Costs including, without limitation, attorneys' fees of the Administrative Agent to the extent invoiced prior to or on such dateAdministrator, plus such additional amounts of Attorney Costs attorneys' fees as shall constitute the Administrative Agent’s Administrator's reasonable estimate of Attorney Costs attorneys' fees incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); proceedings, including any such costs, fees and expenses arising under or referenced payable in accordance with Section 6.4, the Fee Letter and the Engagement Letter.14.5;
(ql) Good standing certificates with respect to the Seller issued The Purchase and Sale Agreement, duly executed by the Secretaries Originators and Seller, and a copy of the States of Delaware and California.all documents required to be delivered thereunder;
(rm) Good standing certificates The Bridge Loan Credit Agreement shall have been terminated and all amounts outstanding thereunder repaid concurrently with respect to the Originator issued by the Secretaries of the States of Delaware and California.initial Purchase hereunder; and
(sn) An executed Receivables Sale AgreementSuch other documents, certificates or opinions as the Administrator may reasonably request.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness purchase of a Receivable Interest under this Agreement is subject to the following conditions precedent that the Administrative Program Agent and each Purchaser Investor Agent shall have received on or before the date of such Purchasepurchase the following, each (unless otherwise indicated) dated such date, in form and substance (including the date thereof) satisfactory to the Administrative Program Agent and each Purchaser Investor Agent:
(a) A counterpart Certified copies of this Agreement the resolutions (or similar authorization, if not a corporation) of the Board of Directors (or similar governing body or Persons, if not a corporation) of the Seller, the Parent and the other Transaction Documents duly executed and delivered by Originators approving this Agreement, the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Originator Purchase Agreement and the any other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, (ii) party and certified copies of all documents evidencing other necessary corporate or limited liability company, as the case may be, action and governmental approvals, if any, with respect to this Agreement, the Originator Purchase Agreement and the other any such Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(cb) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the Parent and the other Originators certifying the names and true signatures of the officers of the Seller Seller, the Parent and the other Originators authorized to sign this Agreement, the Originator Purchase Agreement and the other Transaction Documents (other than the Ancillary Documents) to which be delivered by it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form hereunder and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Sellerthereunder.
(dc) Certified copies of (i) the resolutions Evidence of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies filing of proper financing statements, duly filed statements on or before the date of such initial Purchase purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Program Agent may deem necessary or desirable in order to perfect (with a first priority) the ownership and security interests of the Administrative Agent (on behalf of itself, the Purchaser Agents contemplated by this Agreement and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Originator Purchase Agreement.
(gd) Acknowledgment copies, or time stamped receipt copies Evidence of the filing of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person in (other than i) the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Seller or any Originator or and (ii) the collateral security referred to in Section 2.11 previously granted by the Seller.
(he) Completed UCC search reportsrequests for information, dated on or shortly before the date of such initial Purchasepurchase, listing all effective financing statements filed in the jurisdiction jurisdictions referred to in clause subsection (fc) above and in any other jurisdictions reasonably requested by the Program Agent that name the Seller or the any Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts Contracts, Related Security or Related Securitythe collateral security referred to in Section 2.11).
(if) Copies Executed copies of executed Blocked Account Lock-Box Agreements with the Blocked Account Bankseach Lock-Box Bank.
(jg) A favorable opinion Opinions of Lily Y(i) Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Seller, the Parent and the other Originators, (ii) Tarrant Sibley, Senior Counsel, Corporate and Securities of the Parent, and (iii) ▇▇▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the SellerDivision General Counsel of WOTC, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E C-1, C-2 and C-3 hereto, respectively, and as to such other matters as the Administrative Program Agent or any Investor Agent may reasonably request.
(h) The Fee Agreements.
(i) The Funds Transfer Letter.
(j) An executed copy of the Originator Purchase Agreement.
(k) A favorable opinion An executed copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably requestParent Undertaking.
(l) A favorable opinion An executed copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Program Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably requestAccount Control Agreement.
(m) A favorable opinion copy of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and limited liability company agreement or the by-laws of the Seller, addressed to the Administrative AgentParent and the other Originators, each Purchasercertified by the Secretary or Assistant Secretary of the Seller, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to Parent or such other matters Originators, as the Administrative Agent case may reasonably requestbe.
(n) Satisfactory results A copy of a review by the Purchasers certificate of formation or articles of incorporation of each of the Seller’s , the Parent and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results other Originators certified as of a review recent date by its Secretary or by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each of the Seller’s , the Parent and the Originator’s operating locations and satisfactory review other Originators from such Secretary of the Eligible Receivables in existence on the date State or other official, dated as of the initial Purchase under this Agreementa recent date.
(o) Monthly Receivables Report representing the performance The opening pro forma balance sheet of the portfolio of Pool Receivables for the month prior Seller referred to the initial Purchasein Section 4.01(e).
(p) Evidence satisfactory to the Program Agent and each Investor Agent of the payment of (i) the up-front structuring fee referred to in the Fee Agreements and (ii) all out-of-pocket expenses then incurred by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Program Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costsInvestor Agents, fees including, without limitation, audit and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.legal fees. 38
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement is subject On or prior to the Initial Purchase Date, the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received on occurred, or before each Seller shall have delivered or caused to be delivered to the date of such PurchasePurchaser, the Securitization Agent and/or the Credit Enhancer, as may apply, the following documents, in each case, in form and substance (including the date thereof) satisfactory to the Administrative Purchaser, the Securitization Agent and each Purchaser Agentand/or the Credit Enhancer:
(a) A counterpart executed copies of this Agreement Agreement, the Assignment and the other Transaction Related Documents duly executed required to be delivered in connection with the Initial Purchase, including a certified copy of the Credit and delivered by the parties thereto.Collection Policies;
(b) Certified copies a certificate of (i) an officer of each Seller providing for and certifying the resolutions of the board of directors or shareholders of the such Seller approving and authorizing the execution, delivery, delivery and performance by the Seller of this Agreement and the other Transaction Documents documents to be delivered by the relevant Seller hereunder and the assignment of the Receivables, and the Related Security and Collections related thereto, hereunder;
(other than c) an incumbency certificate of the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to officers of each Seller executing this Agreement and the other Transaction Documents documents to be delivered by each Seller hereunder showing their names, offices and specimen signatures on which certificate the Purchaser and the Credit Enhancer shall be entitled to conclusively rely until such time as each Seller delivers a replacement certificate meeting the requirements of this Section 6.1(c);
(other than d) certified copies of the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation constating documents and by-laws of the each Seller.;
(ce) A for each Seller, certificates of status, of good standing or of compliance, as appropriate, issued by its jurisdiction of incorporation and by each jurisdiction where registrations have been, or are to be, effected in respect of the Purchaser's ownership interest in the Purchased Assets evidencing each Seller's registration and good standing as a registered corporation therein;
(f) reports showing the results of the searches conducted in each of the Provinces and Territories in Canada and the States of Virginia and Delaware in the United States against the relevant Seller and each predecessor of such Seller on the Business Day immediately preceding the Initial Purchase Date (or as near as practicable thereto) to determine the existence of any Liens in the assets of the relevant Seller or in the Receivables, the Related Security or Collections related thereto, together with a certificate of the Secretary or Assistant Secretary an officer of the relevant Seller certifying that the names THIS DOCUMENT AND ANY COPIES THEREOF, ELECTRONIC OR OTHERWISE, ARE THE PROPERTY OF EFFICIENT CAPITAL CORPORATION. UNAUTHORIZED DISTRIBUTION OF THIS DOCUMENT, ELECTRONIC OR OTHERWISE, IS PROHIBITED WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF EFFICIENT CAPITAL CORPORATION. THIS DOCUMENT AND ANY COPIES THEREOF, ELECTRONIC OR OTHERWISE, ARE TO BE RETURNED UPON THE REQUEST OF EFFICIENT CAPITAL CORPORATION. aforementioned searches disclosed no Liens registered or recorded against the relevant Seller or its predecessors with respect to, and true signatures then applicable to, the Receivables, the Related Security or Collections related thereto, prior to the date shown as the "file currency date" (or similar designation) on the search reports, other than those for which discharges or releases have been provided in accordance with Section 6.1(h), and, if required by the Rating Agency, an opinion of counsel in each of the officers Provinces and Territories in Canada and the States of Virginia and Delaware in the United States on the due registration within such jurisdiction of the Seller authorized to sign this Agreement Purchaser's purchase of, and its interest in, the Purchased Assets;
(g) copies of properly completed and duly registered assignments and/or financing statements or verification statements for each of the Provinces and Territories in Canada and the States of Virginia and Delaware in the United States, with the registration particulars stamped thereon, dated prior to (where permitted by applicable Law) the Initial Purchase Date naming the relevant Seller as seller, assignor or debtor and the Purchaser as purchaser, assignee or secured party, and/or such other Transaction Documents similar instruments or documents as may be necessary and/or, in the Purchaser's reasonable opinion, advisable under any applicable PPSA to perfect, record or protect the Purchaser's ownership interest in the Purchased Assets;
(other than h) executed copies of all discharges and releases, if any, reasonably required by the Ancillary Documents) Purchaser or necessary to which it will be a party. Until discharge or release all Liens or interests of any Person in the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentPurchased Receivables, the Administrative Agent shall be entitled to rely on Contracts, the last such certificate delivered to it Related Security and the Collections related thereto previously granted by the relevant Seller.;
(di) Certified copies an opinion of counsel to each Seller dated as of the date of this Agreement; and
(j) such other documentation as may be required by (i) the resolutions of the board of directors (Purchaser or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partycounsel, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and relevant Seller or its counsel or (iii) the certificate of incorporation and by-laws of the Seller and OriginatorCredit Enhancer or its counsel, in each case, acting reasonably.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Mitel Networks Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement is hereunder was subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such Purchase the following, each of which (unless otherwise indicated) was to be dated the date of such Purchase, each and was in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.The Certificate;
(b) Certified copies A copy of (i) the resolutions adopted by the Board of the board of directors Directors of the Seller authorizing approving this Agreement, the execution, delivery, and performance by the Seller of this Agreement Certificate and the other Transaction Documents (other than the Ancillary Documents) documents to which be delivered by it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement thereunder and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transactions contemplated thereby, certified by its Secretary or Assistant Secretary;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement Agreement, the Certificate and the other Transaction Documents documents to be delivered by it hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent each Owner shall be entitled to conclusively rely on until such time as the last such Agent received from the Seller a revised certificate delivered to it by meeting the Seller.requirements of this subsection (c));
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statementsFinancing Statements (Form UCC-1), duly filed on or before dated a date reasonably near to the date of such the initial Purchase Purchase, naming the Seller as the assignor of Receivables and CNAI, as Agent, as assignee, or other similar instruments or documents, as shall be necessary or, in the opinion of the Agent, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law to perfect (with a first priority) the ownership interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the in all Receivables Sale Agreement.in which an interest could have been assigned thereunder;
(ge) Acknowledgment copies, or time stamped receipt copies Copies of proper terminations of financing statementsFinancing Statements (Form UCC-3) executed by CNAI, if anyas agent under the BFG Agreement, necessary to release releasing all security interests and other rights of any Person (other than CNAI as agent under the Seller and the Administrative Agent) BFG Agreement, in the Pool Receivables, Contracts or Related Security Receivables previously granted by BFG to CNAI, as agent under the Originator or the Seller.BFG Agreement;
(hf) Completed UCC Certified copies of Requests for Information or Copies (Form UCC-11) (or a similar search reportsreport certified by a party acceptable to the Agent), dated on or shortly before a date reasonably near to the date of such the initial Purchase, listing all effective financing statements (including those referred to above in subsection (d)) which name the Seller (under its then present name and any previous name) as debtor and which were filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above that name the Seller or the Originator as debtorabove, together with copies of any such financing statementsstatements (none of which, and similar search reports with respect after giving effect to judgment liensthe financing statements filed pursuant to clause (e) above, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.;
Appears in 1 contract
Sources: Trade Receivables Purchase and Sale Agreement (Geon Co)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Buyer shall have received on or before the date of such PurchasePurchase the following, each in form and substance (including the date thereofunless otherwise indicated) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the executiondated such date, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.Buyer:
(da) Certified copies a copy of (i) the resolutions of the board Board of directors (or its designated committee) Directors of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of Originator approving this Agreement and the other Transaction Facility Documents (other than the Ancillary Documents) to which be delivered by it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement hereunder and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.transactions contemplated hereby, certified by its Secretary or Assistant Secretary;
(eb) A a certificate of the Secretary or Assistant Secretary of the Originator certifying (i) the names and true signatures of the officers of the Originator authorized on its behalf to sign this Agreement and the other Transaction Documents documents to be delivered by it hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until Buyer may conclusively rely until such time as the Administrative Agent receives a subsequent incumbency certificate Buyer shall receive from the Originator in form a revised certificate meeting the requirements of this subsection (b)), (ii) a copy of the certificate of incorporation of the Originator and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by (iii) a copy of the Originator.'s by-laws;
(fc) Acknowledgment copiesduly executed financing statements (Form UCC-1), in proper form for filing, naming the Originator as the debtor/seller of the Purchased Assets and the Buyer as secured party/purchaser or time stamped receipt copies other documents, as may be necessary or, in the opinion of proper financing statementsthe Buyer, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law to perfect (with a first priority) the Buyer's interests of in the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Purchased Assets;
(gd) Acknowledgment copies, or time receipt-stamped receipt copies of proper terminations of financing statementsstatements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security Purchased Assets previously granted by the Originator or the Seller.Originator;
(he) Completed UCC certified copies of requests for information or copies (Form UCC-11) (or a similar search reportsreport certified by a party acceptable to the Buyer), dated on or shortly before a date reasonably near to the date of such the initial Purchase, listing all effective financing statements which name the Originator (under its present name and any previous name) as debtor and which are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above that name the Seller or the Originator as debtorabove, together with copies of such financing statementsstatements (none of which shall cover any Purchased Loans, related Loan Documents, Related Security and/or Collections, except as otherwise agreed by the Buyer;
(f) the Lock-Box Agreements with the Lock-Box Banks, each executed by the Originator and similar search reports acknowledged and agreed to by the applicable Lock-Box Bank and the other parties thereto;
(g) copies of all written agreements, if any, between each Lock-Box Bank and Originator with respect to judgment liens, federal tax liens and liens the opening or operation of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Lock-Box Accounts;
(ih) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable an opinion of Lily Y▇▇ Bass ▇▇▇▇▇ & ▇ims ▇▇▇, corporate counsel for to the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent Buyer may reasonably request.; and
(ki) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator an Officer's Certificate in form and the Seller, addressed substance satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably requestBuyer.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Loan Sale and Contribution Agreement (Sirrom Capital Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseInitial Closing Date, the following, each (unless otherwise indicated) dated the Initial Closing Date, and each in form form, substance and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser the Agent:
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of Seller approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.Secretary or Assistant Secretary of Seller;
(b) Certified copies Good standing certificate for Seller issued as of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance a recent date by the Seller Secretary of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate State of incorporation and by-laws of the Seller.Delaware;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized on Seller's behalf to sign this Agreement the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than Seller) may conclusively rely until such time as the Company and the other Transaction Documents Servicer shall receive from Seller a revised certificate meeting the requirements of this subsection (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.c);
(d) Certified copies The articles of (i) incorporation of Seller, duly certified by the resolutions Secretary of State of Delaware as of a recent date, together with a copy of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of Seller, duly certified by the Secretary or Assistant Secretary of the Originator certifying the names and true signatures Seller;
(e) Copies of the officers proper financing statements (Form UCC-1) that have been duly executed and name Seller as the assignor and the Company as the assignee (and the 2nd Step Purchaser, as assignee of the Originator authorized to sign this Agreement Company) of the Receivables and the other Transaction Documents (other than Related Rights or other, similar instruments or documents, as may be necessary or, in Servicer's or the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which the ownership interest may be assigned to it hereunder;
(with f) A written search report from a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Person satisfactory to Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Agent listing all effective financing statements that name Seller as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e) and those in favor of the agent pursuant to the Senior Credit Agreement shall cover any Receivable or any Related Right related to any Receivable) which is to be sold to the Company hereunder, and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax Servicer and the Agent showing no evidence of such liens and liens filed against Seller;
(g) Evidence (i) of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any execution and delivery by each of the Pool Assetsparties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, Pool Receivablesdelivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction;
(h) The Initial PCA Note in favor of Seller, Contracts or Related Security.duly executed by the Company; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed Seller to the Administrative Agent, each Purchaser, each Purchaser Agent effect that Servicer and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence have placed on the date of most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the initial Purchase under this Agreementfollowing legend (or the substantive equivalent thereof): THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD BY PACKAGING CORPORATION OF AMERICA TO PACKAGING CREDIT COMPANY, LLC AND THEN SOLD BY PACKAGING CREDIT COMPANY, LLC TO PACKAGING RECEIVABLES COMPANY, LLC; AND A SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND ASSIGNED BY PACKAGING RECEIVABLES COMPANY, LLC TO WACHOVIA BANK, N.A., AS AGENT.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Sale Agreement (Packaging Corp of America)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Sub-Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Sub-Originator;
(b) Certified copies good standing certificates for each Sub-Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and bysuch Sub-laws of the Seller.Originator’s organization or formation;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Sub-Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the Seller in form requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Sub-Originator (including all amendments and substance satisfactory to modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Sub-Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Sub-Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary, an Assistant Secretary of such Sub-Originator;
(e) forms of financing statements (Form UCC-1) that name each Sub-Originator as the debtor/seller, the Buyer as the buyer/assignor, the SPV as the buyer/assignor (and the Administrative Agent, for the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions benefit of the board of directors (or its designated committeeLenders, as secured party/assignee) of the Seller and Servicer authorizing the execution, delivery, and performance Receivables sold by the Seller and Servicer of this Agreement and Sub-Originators as may be necessary or, in the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary Buyer’s or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Buyer’s ownership or security interest in such Receivables and the Purchasers) contemplated by the Agreement and Related Rights in which an ownership or security interest has been assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC a written search reports, dated on or shortly before the date of such initial Purchase, results listing all effective financing statements that name each Sub-Originator as debtor or seller and that are filed in such Sub-Originator’s jurisdiction of organization and all other jurisdictions in which filings may be made against such Person pursuant to the jurisdiction referred to in clause (f) above that name the Seller or the Originator applicable UCC for applicable as debtorextracted collateral, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (or released or terminated, as the case may be, on or prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens, federal tax liens and results (including liens of the Pension Benefit Guaranty Corporation PBGC) showing no evidence of such liens filed against such Sub-Originator;
(g) favorable opinions of counsel to each Sub-Originator, in such jurisdictions as form and substance reasonably satisfactory to the Buyer and the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Agent; and
(h) evidence (i) Copies of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed Blocked Account Agreements with and delivered by it in connection herewith and (ii) that each of the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementBuyer’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Sources: Sub Originator Purchase and Sale Agreement (Covia Holdings Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of under this Amended and Restated Receivables Purchase Agreement is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) Good standing certificates for each of Parent, each Originator and Seller issued by the Secretaries of State of the jurisdiction of its incorporation and its principal place of business;
(b) A counterpart certificate of the Secretary of each of Seller, each Originator and Parent certifying (i) a copy of the resolutions of its Board of Directors approving this Agreement and the other Transaction Documents duly executed and to be delivered by it hereunder and the parties thereto.
transactions contemplated hereby; (b) Certified copies of (iii) the resolutions names and true signatures of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (other than on which certificate the Ancillary DocumentsAdministrator, each Agent and each Purchaser may conclusively rely until such time as the Administrator shall receive from Seller, such Originator or Parent, as the case may be, a revised certificate meeting the requirements of this subsection (b)); (iii) to which it will be a party, copy of its by-laws; and (iiiv) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.;
(c) A certificate The Certificate of Incorporation or Articles of Incorporation, as applicable, of each of Seller, each Originator and Parent, duly certified by the Secretary of State of the Secretary or Assistant Secretary jurisdiction of the Seller certifying the names and true signatures its incorporation, as of the officers of the Seller authorized a recent date acceptable to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.Administrator;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies copies, of proper financing statementsstatements (Form UCC-1), duly (or amendments thereto, as appropriate) filed on or before prior to the date of such the initial Purchase Purchase, naming (i) each Originator as the debtor and seller of Receivables, Seller as the secured party and purchaser and Administrator, for the ratable benefit of the Purchasers, as the assignee and (ii) Seller as the debtor and seller of Receivables or an undivided interest therein and Administrator, for the ratable benefit of the Purchasers, as the secured party and purchaser, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrator, desirable under the UCC or any comparable law of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the Seller's and Purchasers' interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted Assets;
(e) A search report provided in writing to and approved by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Administrator listing all effective financing statements that name any Originator as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above and in such other jurisdictions that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivablesunless executed termination statements and/or partial releases with respect thereto have been delivered to the Administrator), Contracts or Related Security.and tax and judgment lien search reports from a Person satisfactory to Servicer and the Administrator showing no evidence of such liens filed against Parent;
(if) Copies Duly executed copies of executed Blocked Account the Lock-Box Agreements with the Blocked Account Lock-Box Banks.;
(jg) A favorable opinion Favorable opinions of Lily Y▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the Originator to Parent and the Seller, addressed to in substantially the Administrative Agentforms of Exhibits 5.01(g)-1 and 5.01(g)-2, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form respectively;
(h) Such powers of Annex E and as to such other matters attorney as the Administrative Agent may Administrator shall reasonably request.request to enable the Administrator to collect all amounts due under any and all Pool Assets;
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(pi) Evidence of payment by of the Seller of by all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs attorneys' fees of the Administrative Agent Administrator to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs attorneys' fees as shall constitute the Administrative Agent’s Administrator's reasonable estimate of Attorney Costs attorneys' fees incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative AgentAdministrator); , including any such costs, fees and expenses arising under or referenced in Section 6.414.05;
(j) In the case of Market Street, its Liquidity Agreement, duly executed by Market Street, the Fee Letter Market Street Agent and each of its Liquidity Banks and, in the Engagement Letter.case of Blue Keel, an amendment to its Liquidity Agreement, duly executed by Blue Keel, the Liquidity Agent and each of its Liquidity Banks;
(qk) Good standing certificates with respect to the Seller issued by the Secretaries Duly executed copies of the States of Delaware and California.Fee Letter; and
(rl) Good standing Such other documents, certificates with respect to or opinions as the Originator issued by the Secretaries of the States of Delaware and CaliforniaAdministrator or any Agent may reasonably request.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (D & K Healthcare Resources Inc)
Conditions Precedent to Initial Purchase. The initial ---------------------------------------- Purchase after effectiveness of Receivable Interests under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent Purchasers shall have received on or before the date of such PurchasePurchase the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Purchasers and the Administrative Agent and each Purchaser Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate Certificates of the Secretary or Assistant Secretary of the Seller and each Originator certifying the names and true signatures of the their respective officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than documents to be delivered by them hereunder or in connection herewith, evidence of authorization of the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agenttransactions contemplated hereby, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it articles of incorporation or formation (attached and appropriately certified by the Seller.
(d) Certified copies Secretary of (i) the resolutions State of the board Seller's and each Originator's jurisdiction of directors (incorporation or its designated committeeformation) and the by-laws and all amendments thereto of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and each Originator.
(eb) A certificate Executed financing statements (including any assignments of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized amendments to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) financing statements previously filed), to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Purchasers or the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order (i) to perfect (with a first priority) the ownership interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the this Agreement and (ii) to perfect (with a first priority) the ownership interests of the Seller as contemplated in the receivables purchased by the Receivables Sale AgreementSeller from the Originators pursuant to the Transfer Agreements.
(gc) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing Executed UCC termination statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller Purchasers and the Administrative AgentSecondary Purchasers) in the Pool Receivables, Contracts or Related Security previously granted by the Originator Seller or the Sellerany Originator.
(hd) Completed UCC Evidence (including Uniform Commercial Code search reports, dated on or shortly before the date ) that all Receivables and all proceeds thereof are free and clear of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens security interests, claims and liens of encumbrances other than those held by the Pension Benefit Guaranty Corporation in such jurisdictions as Purchasers and the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecuritySecondary Purchasers.
(ie) Copies of An executed Blocked Account Agreements with the Blocked Account BanksTransfer Agreement and Consent and Acknowledgment from each Originator.
(jf) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Seller and for each Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Purchasers or the Administrative Agent may reasonably request, including, without limitation, bankruptcy opinions with respect to "true sale" and nonconsolidation.
(kg) A favorable opinion An executed Payoff Letter and evidence of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form payment of Annex F and as to such other matters as the Administrative Agent may reasonably requestall amounts payable thereunder.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(sh) An executed Receivables Sale Agreement.
(t) Letters from each Paydown Letter and evidence of the rating agencies then rating the Notes payment of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreementall amounts payable thereunder.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this pursuant to the Existing Agreement is was subject to the following conditions precedent that precedent:
(a) the Administrative Agent and each Purchaser Agent Agent, on the Purchaser's behalf, shall have received received, on or before the date of such initial Purchase, the following each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent and each Purchaser Agent:
(ai) A counterpart of this The Sale Agreement and the any other Transaction Documents Document, duly executed and delivered by the parties thereto.;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the each Seller Party certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Administrative Agent and the Purchaser may conclusively rely until such time as the Administrative Agent, on the Purchaser's behalf, shall receive from such Seller Party a revised certificate meeting the requirements of this SUBSECTION (ii));
(iii) The Articles or Certificate of Incorporation of each Seller Party, duly certified by the Secretary of State of such Seller Party's state of incorporation, as of a recent date acceptable to Administrative Agent, on the Purchaser's behalf, in each case together with a copy of the by-laws of such Seller Party, duly certified by the Secretary or an Assistant Secretary of such Seller Party;
(iv) A true and complete copy of the resolutions of the Board of Directors of each Seller Party authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party and the transactions contemplated hereby and thereby;
(v) Copies of good standing certificates for each Seller Party, issued by the Secretaries of State of the state of incorporation of such Seller Party and the state where such Seller Party's principal place of business is located;
(vi) Acknowledgment copies (or other evidence of filing reasonably acceptable to the Administrative Agent, on the Purchaser's behalf) of (A) proper financing statements (Form UCC-1), in such form as the Administrative Agent, on the Purchaser's behalf, may reasonably request, naming each of the Originators as the debtor and the seller of the Receivables and Related Assets, the Seller as the secured party and purchaser thereof and the Administrative Agent, as agent for the Secured Parties as assignee, and (B) financing statements (Form UCC-1), in such form as the Administrative Agent, on the Purchaser's behalf, may reasonably request, naming the Seller as the debtor and the seller of an undivided percentage interest in the Pool Receivables and Related Assets and the Administrative Agent, as agent for the Secured Parties as the secured party and purchaser thereof, or other, similar instruments or documents as may be necessary or, in the opinion of the Administrative Agent, on the Purchaser's behalf, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by each Originator to the Seller of, and the Purchaser's undivided percentage interest in, the Pool Receivables and Related Assets;
(vii) Search reports provided in writing to the Administrative Agent, on the Purchaser's behalf, (A) listing all effective financing statements that name any Seller Party or Originator (including legal names and tradenames) as debtor and that are filed in the jurisdictions in which filings were made pursuant to SUBSECTION (vi) above and in such other jurisdictions that the Administrative Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the Ancillary Documentsfinancing statements described in SUBSECTION (vi) above) shall cover any Receivables or Related Assets, and (B) listing all tax liens and judgment liens (if any) filed against any debtor referred to which it will in CLAUSE (A) above in the jurisdictions described therein and showing no such Liens;
(viii) Evidence that the Initial Seller Notes have been duly executed and delivered by the Seller;
(ix) [RESERVED];
(x) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Seller Parties and Lennox International, as to:
(A) the existence of a "true sale" of the Receivables from the Originators to the Seller under the Sale Agreement;
(B) the inapplicability of the doctrine of substantive consolidation to the Seller and the Originators in connection with any bankruptcy proceeding involving Heatcraft Technologies, ▇▇▇▇▇▇▇▇▇ or the Originators;
(C) the creation of a first priority perfected security interest in favor of the Purchaser in (1) all the Pool Receivables and Related Assets (and including specifically any undivided interest therein retained by Seller hereunder), the Sale Agreement and other Transaction Documents and (2) all proceeds of any of the foregoing;
(D) due authorization, execution, delivery, enforceability and other corporate matters of the Seller Parties and Lennox International as to the Transaction Documents (however, the opinion as to certain New York law matters may be a party. Until provided by in-house counsel); and
(E) such other matters as the Administrative Agent receives a subsequent incumbency certificate from Agent, acting on behalf of the Seller Purchaser, may reasonably request.
(xi) A pro forma Information Package, prepared as of the Cut-Off Date of May 31, 2000;
(xii) A report in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered Purchaser's behalf, from the Initial Due Diligence Auditor as to it a pre-closing due diligence audit by the Seller.Initial Due Diligence Auditor;
(dxiii) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the executionThe Liquidity Agreement, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it Purchaser's behalf, duly executed by the Originator.
(f) Acknowledgment copiesPurchaser, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Liquidity Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Liquidity Bank;
(gxiv) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports Lockbox Agreements with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.each Lockbox Account;
(ixv) Copies of Evidence that the Assurance Agreement has been duly executed Blocked Account Agreements with the Blocked Account Banks.and delivered by Lennox International;
(jxvi) A favorable opinion [RESERVED];
(xvii) With respect to Lennox International, a consolidated balance sheet, income statement and statement of Lily Y▇▇ ▇▇▇▇▇▇▇shareholders' equity as at December 31, corporate counsel for the Originator 1999 and with respect to the Seller, addressed to the Administrative Agenta balance sheet, income statement and statement of shareholders' equity as at June 9, 2000, each Purchaserof the foregoing together with a certification of the chief financial officer, each Purchaser Agent and each Alternate Purchaser substantially chief accounting officer, controller or treasurer in the form of Annex E and attached hereto as to EXHIBIT B; and
(xviii) such other matters agreements, instruments, certificates, opinions and other documents as the Administrative Agent may reasonably request.; and
(kb) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to Lennox shall have paid or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or caused to be incurred by it through paid (i) the closing proceedings Structuring Fee and (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letterii) all Transaction Fees.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lennox International Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following satisfaction of the conditions precedent that the Administrative Agent and each Purchaser Agent shall have received specified under this Section 5.01 on or before the date Initial Funding Date (any or all of such Purchasewhich may be waived by the Administrator in its sole discretion).
(a) The Administrator shall have received the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(ai) A counterpart Certified copies of resolutions of the Board of Directors, Managers or members, as applicable, of each of the Seller, the Transferor, the Originators and the Servicer authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, ;
(ii) all Certified copy of the organizational documents evidencing other necessary corporate action and governmental approvalsgoverning instruments, if anyas applicable, with respect to this Agreement of each of the Seller, the Transferor, the Originators and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and Servicer;
(iii) the certificate of incorporation and by-laws Good standing certificates for each of the Seller., the Transferor, the Originators and the Servicer issued as of a recent date acceptable to the Administrator by the Secretary of State of the jurisdiction where the Seller, the Transferor, each Originator and the Servicer, respectively, is organized;
(civ) A certificate of the Secretary or an Assistant Secretary of each of the Seller Seller, the Transferor, the Originators and the Servicer certifying the names and true signatures of the its officer or officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party. Until ;
(v) Such proper financing statements (Form UCC-1), to be filed against each of the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentSeller, the Administrative Agent shall Transferor and the Originators as may be entitled to rely on necessary or, in the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions opinion of the board of directors (or its designated committee) of the Seller and Servicer authorizing the executionAdministrator, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC or any comparable law of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the Purchaser's interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Assets;
(hvi) Completed UCC A search reports, dated on or shortly before report provided in writing to the date of such initial PurchaseAdministrator, listing all effective financing statements that name any of the Originators, the Transferor or the Seller as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fe) above and in such other jurisdictions that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.);
(ivii) Copies Favorable opinions of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and to the Seller, addressed the Transferor, the Originators and the Servicer, in form and substance reasonably satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent Administrator;
(viii) A written agreement between Servicer and each Alternate Purchaser substantially in the Administrator as to the form and required content of Annex E the Information Package, and a pro forma Information Package, prepared in respect of the proposed initial Purchase, as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month no more than 3 Business Days prior to the initial Purchase.Initial Funding Date; and
(pix) Evidence Fully executed copies of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs the First Tier Agreement, the Second Tier Agreement, the Account Control Agreement, the FSC Guaranty and expenses the Cap Agreement, each of which agreements shall be in form and substance reasonably satisfactory to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.Administrator;
(qb) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating Transaction Accounts shall have been established; and
(c) the Notes of each Conduit Purchaser confirming Stock Purchase Agreement shall have been executed and delivered by the rating of its Notes after giving effect parties thereto in a form substantially similar to the transactions contemplated by this Agreement.
form disclosed to the Administrator prior to the date hereof (u) Receipt and satisfactory review or with such changes as could not reasonably be expected to have a Material Adverse Effect), a copy of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding such Stock Purchase Agreement shall have been released in fulldelivered to the Administrator, all outstanding “Advances” (and each Originator shall have become a direct or an indirect subsidiary of Charming Shoppes Inc. as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedcontemplated thereby.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Charming Shoppes Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness ---------------------------------------- of Receivable Interests under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent Secondary Purchasers shall have received on or before the date of such PurchasePurchase the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Secondary Purchasers and the Administrative Agent and each Purchaser Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate Certificates of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the their respective officers of the Originator authorized to sign this Agreement Agreement, the Certificates and the other Transaction Documents (other than documents to be delivered by them hereunder or in connection herewith, evidence of authorization of the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agenttransactions contemplated hereby, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it articles of incorporation or formation (attached and appropriately certified by the Secretary of State of the Seller's and each Originator's jurisdiction of incorporation or formation) and the by-laws and all amendments thereto of the Seller and each Originator.
(fb) Acknowledgment copiesExecuted financing statements (including any assignments of and amendments to financing statements previously filed), or time stamped receipt copies of proper financing statements, duly to be filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Secondary Purchasers or the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order (i) to perfect (with a first priority) the ownership interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the this Agreement and (ii) to perfect (with a first priority) the ownership interests of the Seller as contemplated in the receivables purchased by the Receivables Sale AgreementSeller from the Originators pursuant to the Transfer Agreements.
(gc) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing Executed UCC termination statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller Purchasers and the Administrative AgentSecondary Purchasers) in the Pool Receivables, Contracts or Related Security previously granted by the Originator Seller or the Sellerany Originator.
(hd) Completed UCC Evidence (including Uniform Commercial Code search reports, dated on or shortly before the date ) that all Receivables and all proceeds thereof are free and clear of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens security interests, claims and liens of encumbrances other than those held by the Pension Benefit Guaranty Corporation in such jurisdictions as Purchasers and the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecuritySecondary Purchasers.
(ie) Copies of An executed Blocked Account Agreements with the Blocked Account BanksTransfer Agreement and Consent and Acknowledgment from each Originator.
(jf) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Seller and for each Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Purchasers or the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Sellerincluding, addressed to the Administrative Agentwithout limitation, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates bankruptcy opinions with respect to the Seller issued by the Secretaries of the States of Delaware "true sale" and Californianonconsolidation.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and each Purchaser Agent the Administrator (as the Company’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser Agent:the Administrator (as the Company’s assignee):
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates for each Originator issued as of a recent date reasonably acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State of the Seller authorizing the execution, delivery, jurisdiction of such Originator’s organization and performance by the Seller each jurisdiction where such Originator conducts a material portion of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.its business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator (as the Company’s assignee) may conclusively rely until such time as the Servicer, the Company and the Administrator (as the Company’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation, certificate of formation or other organizational document of each Originator duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or limited liability company agreement of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Forms of financing statements (Form UCC-1) that name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the buyer/assignor (other than and the Ancillary DocumentsAdministrator, for the benefit of the Purchasers, as secured party/assignee) to which it will of the Receivables sold by such Originator as may be a party. Until necessary or, in the Administrative Agent receives a subsequent incumbency certificate from Company’s or the Originator in form and substance satisfactory to the Administrative AgentAdministrator’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership interest in all Receivables and Related Rights (with a first priorityincluding, without limitation, Related Security) in which an ownership or security interest has been assigned to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Company hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC Written search reports, dated on or shortly before the date of such initial Purchase, results listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or the Originator as debtorsellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) and/or those which are released or terminated, as the case may be, on or prior to the Closing Date, shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and similar tax and judgment lien search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, results showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jg) A favorable opinion of Lily Y▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP (and/or local counsel or in-house counsel), counsel for to the Originators, in form and substance reasonably satisfactory to the Company and the Administrator (as the Company’s assignee);
(h) A Company Note in favor of each Originator, duly executed by the Company;
(i) Evidence of the execution and delivery by each Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form Company of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect other Transaction Documents to the transactions contemplated by this Agreement.
(u) Receipt be executed and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released delivered in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.connection herewith; and
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Group Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) and each Purchaser Group Agent:
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Group Agent may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Group Agent shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation, certificate of formation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor secured party (and the Administrative Agent, for the benefit of the Lenders, as secured party/assignee of assignor secured party) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s security interest (within the meaning of the UCC, which includes the interest of a buyer of the Receivables) in such Receivables and the Related Rights in which a security interest (including a buyer’s ownership interest) has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Originator Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem Group Agent;
(h) a Subordinated Note in favor of each Originator, duly executed by the Buyer;
(i) a certificate from an officer of each Originator to the effect that the Servicer or such Originator have placed on the most recent, and have taken all steps reasonably necessary or desirable in order to perfect (with a first priority) the interests ensure that there shall be placed on each subsequent, data processing report that it generates for outside third-parties and is of the Administrative Agent (on behalf of itselftype that a proposed purchaser or lender would use to evaluate the Receivables, the Purchaser Agents and following legend (or the Purchaserssubstantive equivalent thereof): “THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD OR CONTRIBUTED PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 21, 2018, AS AMENDED, BETWEEN EACH OF THE ENTITIES LISTED ON SCHEDULE I THERETO, AS ORIGINATORS, INTEGRA LIFESCIENCES SALES LLC, AS SERVICER AND INTEGRA RECEIVABLES LLC, AS BUYER; AND THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN PLEDGED TO PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, PURSUANT TO A RECEIVABLES FINANCING AGREEMENT, DATED AS OF DECEMBER 21, 2018, AS AMENDED, AMONG INTEGRA RECEIVABLES LLC, AS BORROWER, INTEGRA LIFESCIENCES SALES LLC, AS SERVICER, THE VARIOUS LENDERS AND GROUP AGENTS FROM TIME TO TIME PARTY THERETO, PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND PNC CAPITAL MARKETS LLC, AS STRUCTURING AGENT”; and
(j) contemplated by the Agreement and to perfect evidence (with a first priorityi) the interests of the Seller as contemplated execution and delivery by each of the Receivables Sale Agreement.
parties thereto of each of the other Transaction Documents to be executed and delivered by it in connection herewith and (gii) Acknowledgment copiesthat each of the conditions precedent to the execution, or time stamped receipt copies delivery and effectiveness of proper terminations of financing statements, if any, necessary such other Transaction Documents has been satisfied to release all security interests and other rights of any Person (other than the Seller Buyer’s and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
’s (h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityBuyer’s assignee) satisfaction.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Integra Lifesciences Holdings Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Agent, on the related Purchaser’s behalf, shall have received received, on or before the date of such initial Purchase, the following each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent and each such Purchaser Agent:
(a) A counterpart of this The Sale Agreement and the all other Transaction Documents Documents, duly executed and delivered by the parties thereto.;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the each Seller Party certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Administrative Agent and the Purchasers may conclusively rely until such time as the Purchaser Agent, on the related Purchaser’s behalf, shall receive from such Seller Party a revised certificate meeting the requirements of this subsection (b));
(c) The articles or certificate of incorporation or organization of each Seller Party, duly certified by the Secretary of State of such Seller Party’s state of incorporation, dated within thirty (30) days prior to the Closing Date, on the related Purchaser’s behalf, in each case together with a copy of the by-laws of such Seller Party, duly certified by the Secretary or an Assistant Secretary of such Seller Party;
(d) A true and complete copy of the resolutions of the Board of Directors, managers or members, as applicable, of each Seller Party authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party and the transactions contemplated hereby and thereby;
(e) Copies of good standing certificates for each Seller Party dated within thirty (30) days prior to the Closing Date, issued by the Secretaries of State of the state of incorporation or organization of such Seller Party and the state where such Seller Party’s principal place of business is located;
(f) Acknowledgment copies (or other evidence of filing reasonably acceptable to the Administrative Agent, on the Purchaser’s behalf,) of (i) proper amended financing statements (Form UCC-1), in such form as the Administrative Agent, on behalf of the Secured Parties, may reasonably request, naming Georgia Gulf and GGCV as the debtors and the sellers of the Receivables and Related Assets, the Seller as the secured party and purchaser thereof and the Administrative Agent, for the benefit of the Secured Parties, as assignee, and (ii) amended financing statements (Form UCC-1), in such form as the Administrative Agent, on behalf of the Secured Parties, may reasonably request, naming the Seller as the debtor and seller of an undivided percentage interest in the Pool Receivables and Related Assets and the Administrative Agent, for the benefit of the Secured Parties, as the secured party and purchaser thereof, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent, on behalf of the Secured Parties, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by Georgia Gulf and GGCV to the Seller of, and the Administrative Agent’s, for the benefit of the secured parties, undivided percentage interest in, the Pool Receivables and Related Assets;
(g) Search reports provided in writing to the Administrative Agent, on behalf of the Secured Parties, with results as of a date within thirty (30) days prior to the Closing Date, listing all effective financing statements that name any Seller Party as debtor and that are filed in the jurisdictions in which filings were made pursuant to subsection (f) above and in such other jurisdictions that the Administrative Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the Ancillary financing statements described in subsection (f) above) shall cover any Receivables or Related Assets);
(h) The Subordinated Notes, duly executed by Seller;
(i) A favorable opinion of ▇▇▇▇▇ Day, counsel to the Seller Parties, as to:
(i) the existence of a “true sale” of the Receivables from the Originators to the Seller under the Sale Agreement;
(ii) the inapplicability of the doctrine of substantive consolidation to the Seller, Georgia Gulf and GGCV in connection with any bankruptcy proceeding involving any Seller Party;
(iii) the creation or existence of a first priority perfected security interest in favor of the Purchasers in (A) all the Pool Receivables and Related Assets (and including specifically any undivided interest therein retained by the Seller hereunder), (B) the rights of the Seller in, to and under the Sale Agreement and the other Transaction Documents and (C) all proceeds of any of the foregoing;
(iv) due authorization, execution, delivery, enforceability and other corporate matters of the Seller Parties as to the Transaction Documents; and
(v) to which it will be a party. Until such other matters as the Administrative Agent receives a subsequent incumbency certificate Agent, acting on behalf of the Secured Parties, may reasonably request.
(j) A pro forma Information Package, prepared as of the Cut-Off Date of September 30, 2004;
(k) A report in form and substance satisfactory to each Purchaser Agent, on the related Purchaser’s behalf, from the Seller Initial Due Diligence Auditor as to a pre-closing due diligence audit by the Initial Due Diligence Auditor (such report and any amendment, supplement, update or other modification, the “Due Diligence Report”);
(l) The Blue Ridge Liquidity Agreement, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it Purchasers’ behalf, duly executed by each of the Seller.parties thereto;
(dm) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the executionThe Victory Liquidity Agreement, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Victory Purchaser Agent, duly executed by each of the parties thereto;
(n) With respect to Georgia Gulf and GGCV, a consolidated balance sheet, income statement and statement of cashflows as at December 31, 2003 and June 30, 2004, respectively, and with respect to the Seller, a balance sheet, income statement and statement of cashflows as at December 31, 2003 and June 30, 2004, respectively, each of the foregoing together with a certification of the chief financial officer, treasurer or corporate controller in the form attached hereto as Exhibit B;
(o) The Administrative Agent and the Purchaser Agents shall be entitled to rely on have received copies of a Lock-Box Agreement for each Lock-Box Account, duly executed by each of the last such certificate delivered to it by the Originatorparties thereto.
(fp) Acknowledgment copiesSuch other agreements, or time stamped receipt copies of proper financing statementsinstruments, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itselfcertificates, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests opinions and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator documents as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form form, substance and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Originator approving the execution, delivery, and performance Transaction Documents to be delivered by the Seller of this Agreement it and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby and thereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of certified by the Secretary or Assistant Secretary of the Seller certifying Originator; -9-
(b) A Certificate of Existence for the names and true signatures Originator issued as of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it recent date by the Seller.Indiana Secretary of State;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(ec) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on the Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than the Originator) may conclusively rely until such time as the Company and the Servicer shall receive from the Originator a revised certificate meeting the requirements of this subsection (c));
(d) The articles of incorporation of the Originator authorized to sign this Agreement together with a copy of the by-laws of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed and name the Originator as the assignor and the other Transaction Documents Company as the assignee (other than and Purchaser as assignee of the Ancillary DocumentsCompany) to which it will be a party. Until of the Administrative Agent receives a subsequent incumbency certificate from Receivables generated by the Originator and Related Rights or other, similar instruments or documents, as may be necessary or, in form and substance satisfactory to Servicer's or the Administrative Agent's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which an ownership interest may be transferred to it hereunder;
(with f) A written search report from a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Person satisfactory to Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Agent listing all effective financing statements that name the Originator as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e), shall cover any Receivable or any Related Right), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no evidence of such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and filed against the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Minnesota Power & Light Co)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase ---------------------------------------- hereunder is subject to the following conditions condition precedent that Servicer (on the Administrative Agent and each Purchaser Agent Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to Servicer (acting on the Administrative Agent and each Purchaser Agent:Company's behalf):
(a) A counterpart KCI Assignment Certificate in the form of this Agreement and Exhibit C from the other Transaction Documents --------- Seller, duly completed, executed and delivered by the parties thereto.Seller;
(b) Certified copies A copy of (i) the resolutions of the board Executive Committee of directors the Board of Directors of the Seller authorizing approving the executionTransaction Documents to be delivered by it and the transactions contemplated hereby and thereby, delivery, and performance certified by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws Secretary or Assistant Secretary of the Seller.;
(c) Good standing certificates for the Seller issued as of a recent date acceptable to Servicer by the Secretary of State of the jurisdiction of the Seller's incorporation and the jurisdiction where the Seller's chief executive office is located;
(d) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate Servicer and the Company may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this subsection (d)); --------------
(e) The certificate or articles of incorporation or other organizational document of the Seller, duly certified by the Secretary of State of the jurisdiction of Seller's incorporation as of a recent date acceptable to the Servicer, together with a copy of the bylaws of the Seller, each duly certified by the Secretary or an Assistant Secretary of the Seller;
(f) Originals of the proper financing statements (Form UCC-1) that have been duly executed and name the Seller authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the secured party/purchaser (other than and the Ancillary DocumentsIssuer, as assignee of the Company) to which it will be a party. Until of the Administrative Agent receives a subsequent incumbency certificate from Receivables acquired or generated by the Seller as may be necessary or, in the Servicer's or the Administrator's opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest may be assigned to it hereunder;
(g) A written search report from a Person satisfactory to the Servicer listing all effective financing statements that name the Seller as debtor or seller and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (f), together with copies of such -------------- financing statements (none of which, except for those described in the foregoing subsection (f), shall cover any Receivable or any Related Rights -------------- which are to be sold to the Company hereunder), and tax and judgment lien search reports from a Person satisfactory to the Servicer showing no evidence of such liens filed against the Seller;
(h) A favorable opinion of Sidley & Austin, counsel to the Seller, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Administrator;
(i) Copies A Company Note in favor of the Seller, duly executed Blocked Account Agreements with by the Blocked Account Banks.Company; and
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters certificate from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations an officer of the Seller to the effect that the Servicer and the Servicer thereunder Seller have been terminatedplaced on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, data processing report that it generates which are of the type that a proposed purchaser or lender would use to evaluate the Receivables, the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO KPMG CONSULTING, INC. PURSUANT TO A SALE AGREEMENT, DATED AS OF MAY 22, 2000, AS AMENDED, BETWEEN KPMG CONSULTING, LLC, AND KPMG CONSULTING, INC.; AND SUCH RECEIVABLES HAVE BEEN SOLD BY KPMG CONSULTING, INC. TO KCI FUNDING CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF MAY 22, 2000, AS AMENDED, BETWEEN KPMG CONSULTING, INC., AND KCI FUNDING CORPORATION; AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO MARKET STREET FUNDING CORPORATION PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MAY 22, 2000, AS AMENDED, AMONG KPMG CONSULTING, INC., AS THE SERVICER, KCI FUNDING CORPORATION, MARKET STREET FUNDING CORPORATION AND PNC BANK, NATIONAL ASSOCIATION."
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such PurchasePurchase the following, each (unless otherwise indicated) dated such date, in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentPurchaser:
(a) A counterpart of this Agreement and the other Transaction Documents This Agreement, duly executed and delivered by the parties thereto.hereto;
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors of each Terra Party (or, in the case of a partnership, of the Seller authorizing general partner of such Terra Party) approving the execution, delivery, delivery and performance of each Agreement Document to be delivered by the Seller of this Agreement it hereunder or in connection herewith and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transactions contemplated thereby;
(c) Good standing certificates for each Terra Party issued by the Secretaries of State of the state of such Person's incorporation and such Person's principal place of business as of a recent date;
(d) A certificate of the Secretary or Assistant Secretary of each Terra Party (or, in the Seller case of a partnership, of the general partner of such Terra Party) certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this the Agreement and the other Transaction Documents to be delivered by it hereunder or in connection herewith (other than the Ancillary Documents) to on which it will be a party. Until certificate the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, Purchasers may conclusively rely until such time as the Administrative Agent shall be entitled to rely on receive from such Person a revised certificate meeting the last such certificate delivered to it by the Seller.
requirements of this subsection (d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.));
(e) A certificate The Articles of Incorporation of each Terra Party that is a corporation duly certified by the Secretary of State of the state of such Person's incorporation as of a recent date acceptable to Administrative Agent, together with a copy of the By-laws of such Person, duly certified by the Secretary or an Assistant Secretary of such Person; in the case of each Terra Party that is a partnership, a copy of such Person's partnership agreement, duly certified by the Secretary or an Assistant Secretary of the Originator certifying general partners; in the names case of each Terra Party that is a limited liability company, a copy of such Person's certificate of formation and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it operating agreement duly certified by the Originator.Secretary or an Assistant Secretary of a member;
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statementsFinancing Statements (Form UCC-1), duly filed on or before prior to the date of such the initial Purchase Purchase, naming (i) each Originator as the debtor and seller of Receivables, Seller as the secured party and purchaser and the Administrative Agent as the assignee and (ii) Seller as the debtor and seller of Receivables or an undivided interest therein and the Administrative Agent, for the benefit of the Purchasers, as the secured party and purchaser, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (Seller's and Purchasers' interests in the Pool Assets; and termination statements or releases with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated respect to each Financing Statement filed by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.any other Person that covers any Pool Asset;
(g) Acknowledgment copies, A search report provided in writing to the Administrative Agent by LEXIS Document Services (or time stamped receipt copies of proper terminations of financing statements, if any, necessary other report acceptable to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase), listing all effective financing statements that name Seller or any Originator as debtor or seller and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (f) above that name and in such other jurisdictions as the Seller or the Originator as debtorAdministrative Agent shall reasonably request, together with copies of such financing statementsstatements (none of which shall cover any Pool Asset, and similar search reports except for those for which releases have been delivered to the Administrative Agent);
(h) Duly executed copies of Lock-Box Agreements with respect to judgment liens, federal tax liens and liens each of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any Lock-Box Banks and duly executed copies of the Pool Assets, Pool Receivables, Contracts or Related Security.Collection Bank Notice to each of the Collection Banks;
(i) Copies Opinions of executed Blocked Account Agreements with ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel to the Blocked Account Banks.
(j) A favorable opinion Terra Parties in substantially the form of Lily YExhibit 5.01(i)-1 and 5.01(i)-2, respectively, and of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, corporate general counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser Terra Parties substantially in the form of Annex E Exhibit 5.01(i)-3;
(j) The Purchase and Sale Agreement, duly executed by the parties thereto, and the Initial Purchaser Notes, duly executed by Seller;
(k) Such powers of attorney as the Administrative Agent shall reasonably request to enable the Administrative Agent to collect all amounts due under any and all Pool Receivables;
(l) A duly executed copy of a Periodic Report calculated as of July 31, 1996 (or such later date as information is available);
(m) A field review report by Price Waterhouse, dated October 30, 1995, with respect to a field review of the Originators' books and records relating to the Receivables (which is hereby acknowledged to have been received);
(n) The Fee Letter duly executed by Seller;
(o) A listing by Obligor of all Eligible Receivables in the Receivables Pool as of the most recent Month End Date;
(p) The Parent Agreement duly executed by the Parent; and
(q) Such other matters documents, opinions and instruments as any Purchaser or the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Terra Industries Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) Good standing certificates for each of Parent and Seller issued by the Secretaries of State of the jurisdiction of its incorporation and its principal place of business;
(b) A counterpart certificate of the Secretary of each of Seller and Parent certifying (i) a copy of the resolutions of its Board of Directors approving this Agreement and the other Transaction Documents duly executed and to be delivered by it hereunder and the parties thereto.
transactions contemplated hereby; (b) Certified copies of (iii) the resolutions names and true signatures of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (other than on which certificate the Ancillary DocumentsAdministrator and Purchaser may conclusively rely until such time as the Administrator shall receive from Seller or Parent, as the case may be, a revised certificate meeting the requirements of this subsection (b)); (iii) to which it will be a party, copy of its by-laws; and (iiiv) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.;
(c) A certificate The Certificate of Incorporation or Articles of Incorporation, as applicable, of each of Seller and Parent, duly certified by the Secretary of State of the Secretary or Assistant Secretary jurisdiction of the Seller certifying the names and true signatures its incorporation, as of the officers of the Seller authorized a recent date acceptable to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.Administrator;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies copies, of proper financing statementsstatements (Form UCC-1), duly filed on or before prior to the date of such the initial Purchase Purchase, naming (i) Parent as the debtor and seller of Receivables, Seller as the secured party and purchaser and Administrator, for the benefit of Purchaser, as the assignee and (ii) Seller as the debtor and seller of Receivables or an undivided interest therein and Administrator, for the benefit of Purchaser, as the secured party and purchaser, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrator, desirable under the UCC or any comparable law of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the Seller's and Purchaser's interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted Assets;
(e) A search report provided in writing to and approved by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Administrator listing all effective financing statements that name Parent as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above and in such other jurisdictions that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, unless executed termination statements and/or partial releases with respect thereto have been delivered to the Administrator), and tax and judgment lien search reports from a Person satisfactory to Servicer and the Administrator showing no evidence of such liens filed against Parent;
(f) Duly executed copies of the Lock-Box Agreements with the Lock-Box Banks;
(g) Favorable opinions of Armstrong, Teasdale, Schlafly & Davi▇, ▇▇unsel to Parent and Seller, in substantially the forms of Exhibits 5.01(g)-1 and 5.01(g)-2, respectively;
(h) Such powers of attorney as the Administrator shall reasonably request to enable the Administrator to collect all amounts due under any and all Pool Receivables, Contracts or Related Security.Assets;
(i) Copies A pro forma Servicer Report, prepared in respect of executed Blocked Account Agreements with the Blocked Account Banks.proposed initial Purchase, assuming a Cut-Off Date of July 31, 1998;
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review and audit, conducted by the Purchasers Fleet, of the Seller’s and the Originator’s Parent's collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s Parent's operating locations location(s) and satisfactory review and approval of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.Purchase;
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(pk) Evidence of payment by of the Seller of by all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs attorneys' fees of the Administrative Agent Administrator to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs attorneys' fees as shall constitute the Administrative Agent’s Administrator's reasonable estimate of Attorney Costs attorneys' fees incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative AgentAdministrator); , including any such costs, fees and expenses arising under or referenced in Section 6.414.05;
(l) The Liquidity Agreement, duly executed by Purchaser, the Fee Letter Liquidity Agent and the Engagement Letter.each Liquidity Bank;
(qm) Good standing certificates with respect The Purchase Agreement, duly executed by Parent and Seller, and a copy of all documents required to the Seller issued by the Secretaries of the States of Delaware and California.be delivered thereunder; and
(rn) Good standing Such other documents, certificates with respect to or opinions as the Originator issued by the Secretaries of the States of Delaware and CaliforniaAdministrator may reasonably request.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (D & K Healthcare Resources Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement is shall be subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Buyer shall have received on or before the date of such Purchasefollowing, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentBuyer:
(a) The Facility Documents executed by parties thereto and a copy of the executed Lock-Box Agreement;
(b) Acknowledgment copies of proper UCC-1 Financing Statements executed by the Originator, as may be necessary or, in the Administrative Agent shall opinion of the Buyer, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the Buyer's interests in all Purchased Receivables, Related Security, Collections and proceeds with respect thereto, in which an interest may be entitled to rely on the last such certificate delivered assigned to it hereunder;
(c) certified copies of Requests for Information or Copies (Form UCC-11) (or a similar search report certified by a party acceptable to the Seller.Buyer), dated a date reasonably near to the date hereof, listing all effective financing statements which name the Originator (under its present name and any previous names) as debtor and which are filed in the jurisdictions in which filings were made pursuant to subsection (b) of this Section 3.1, together with copies of such financing statements;
(d) Certified copies A copy of (i) the resolutions of the board Board of directors (or its designated committee) Directors of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of Originator approving this Agreement and the other Transaction Facility Documents (other than to be delivered by it hereunder and under the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement Facility Documents and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party transactions contemplated hereby and (iii) the certificate of incorporation and by-laws of the Seller and Originator.thereby certified by its Secretary or Assistant Secretary;
(e) The Certificate of Incorporation of the Originator certified by the Secretary of State of Minnesota;
(f) A certificate of the Secretary or Assistant Secretary of the Originator certifying (i) the names and true signatures of the officers of the Originator authorized on its behalf to sign this Agreement and the other Transaction Facility Documents to be delivered by it hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until Buyer may conclusively rely until such time as the Administrative Agent receives a subsequent incumbency certificate Buyer shall receive from the Originator a revised certificate meeting the requirements of this subsection (f)) and (ii) a copy of the Originator's by-laws; and
(g) Opinions of ▇▇▇▇▇▇ & Whitney LLP special counsel for the Originator, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Buyer and the Funding Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Arcadia Financial LTD)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase ---------------------------------------- hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form form, substance and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of each Originator approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.Secretary or Assistant Secretary of such Originator;
(b) Certified copies Good standing certificates for each Originator issued as of (i) a recent date acceptable to Servicer by the resolutions Secretary of State of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement such Originator's incorporation and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.jurisdiction where such Originator's chief executive office is located;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than such Originator) may conclusively rely until such time as the Company and the Servicer shall receive from such Originator a revised certificate meeting the requirements of this subsection (c)); ---------------
(d) The articles of incorporation of each Originator, duly certified by the Secretary of State of the jurisdiction of such Originator's incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed or authorized, as applicable, and name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the secured party/purchaser (other than and the Ancillary DocumentsCollateral Agent as assignee of the Company) of the Receivables generated by such Originator and Related Rights or other, similar instruments or documents, as may be necessary or, in Servicer's or any Funding Agent's opinion, desirable under the UCC of all appropriate jurisdictions or any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which an ownership interest may be assigned to it will be hereunder;
(f) A written search report from a party. Until Person satisfactory to Servicer and the Administrative Agent receives Funding Agents listing all effective financing statements that name any Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (e), together -------------- with copies of such financing statements (none of which, except for those described in the foregoing subsection (e), shall cover any Receivable or -------------- any Related Right), and tax and judgment lien search reports from a subsequent incumbency certificate from Person satisfactory to Servicer and the Funding Agents showing no evidence of any liens filed against any Originator with respect to the Receivables or Related Rights;
(g) Favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Funding Agents;
(h) Completed UCC search reportsEvidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, dated on or shortly before the date delivery and effectiveness of such initial Purchase, listing all effective financing statements filed in other Transaction Documents has been satisfied to the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Company's satisfaction; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the each Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent effect that Servicer and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence have placed on the date of most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the initial Purchase under this Agreementfollowing legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO U.S. STEEL RECEIVABLES LLC PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF NOVEMBER 28, 2001, AMONG UNITED STATES STEEL LLC, THE ORIGINATORS NAMED THEREIN AND U.S. STEEL RECEIVABLES LLC; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO THE BANK OF NOVA SCOTIA, AS COLLATERAL AGENT, PURSUANT TO AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF NOVEMBER 28, 2001, AMONG UNITED STATES STEEL LLC, U.S. STEEL RECEIVABLES LLC, THE VARIOUS CP CONDUIT PURCHASERS, COMMITTED PURCHASERS AND FUNDING AGENTS FROM TIME TO TIME PARTY THERETO AND THE BANK OF NOVA SCOTIA, AS COLLATERAL AGENT.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Sources: Purchase and Sale Agreement (United States Steel Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart Good standing certificates for each of this Agreement Parent and the other Transaction Documents duly executed and delivered Seller issued by the parties thereto.Secretaries of State of the jurisdiction of its incorporation and its principal place of business;
(b) Certified copies A certificate of the Secretary or Assistant Secretary of each of Seller and Parent certifying (i) a copy of the resolutions of its Board of Directors approving the board of directors Transaction Documents to be delivered by it hereunder and the transactions contemplated hereby; (ii) the names and true signatures of the officers authorized on its behalf to sign the Transaction Documents to be delivered by it hereunder (on which certificate the Administrator and each Purchaser may conclusively rely until such time as the Administrator shall receive from Seller authorizing or Parent, as the executioncase may be, delivery, and performance by a revised certificate meeting the Seller requirements of this Agreement subsection (b)); (iii) a copy of its by-laws; and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (iiiv) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be such Person is a party and (iii) the certificate of incorporation and by-laws of the Seller.party;
(c) A certificate The Certificate of Incorporation or Articles of Incorporation, as applicable, of each of Seller and Parent, duly certified by the Secretary of State of the Secretary or Assistant Secretary jurisdiction of the Seller certifying the names and true signatures its incorporation, as of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.recent date;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies copies, of proper financing statementsstatements (Form UCC-1), duly filed on or before prior to the date of such the initial Purchase Purchase, naming (i) the Originator as the debtor and seller of Receivables, Seller as the secured party and purchaser and Administrator, for the benefit of Purchasers, as the assignee and (ii) Seller as the debtor and seller of Receivables or an undivided interest therein and Administrator, for the benefit of Purchasers, as the secured party and purchaser, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrator, desirable under the UCC or any comparable law of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the Seller's and Purchasers' interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted Assets;
(e) A search report provided in writing to and approved by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Administrator listing all effective financing statements that name the Originator or Seller as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above and in such other jurisdictions that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statementsstatements (none of which shall cover any Pool Assets, unless executed termination statements and/or partial releases with respect thereto have been delivered to the Administrator), and similar tax and judgment lien search reports from a Person satisfactory to Servicer and the Administrator showing no evidence of such liens filed against the Originator or Seller;
(f) Duly executed copies of a Lock-Box Agreement with U.S. Bank, National Association, duly executed copies of an undated notice with respect to judgment liensthe Lock-Box Account at Bank of America, federal tax liens National Association and liens duly executed notices in substantially the form of Exhibit 5.01(f)-2 (a "Postmaster Notice") to the Pension Benefit Guaranty Corporation in appropriate postmasters with respect to all Lock-Boxes;
(g) Opinions of Heller, Ehrman, White & McAuliffe, counsel to Parent and Seller covering such jurisdictions matters as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form ▇▇ator may request;
(h) Such powers of Annex E and as to such other matters attorney as the Administrative Agent may Administrator shall reasonably request.request to enable the Administrator to collect all amounts due under any and all Pool Assets;
(ki) A favorable opinion pro forma Servicer Report, prepared in respect of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the proposed initial Purchase, counsel for the Originator and the Sellerassuming a Cut-Off Date of April 30, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.2002;
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(nj) Satisfactory results of a review and audit, conducted by the Purchasers Fleet Securities, of the Seller’s and the Originator’s Parent's collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s Parent's operating locations location(s) and satisfactory review and approval of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.Purchase;
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(pk) Evidence of payment of Seller by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs attorneys' fees of the Administrative Agent Administrator to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.414.05;
(l) The Liquidity Agreement, duly executed by Purchaser, the Fee Letter Liquidity Agent and the Engagement Letter.each Liquidity Bank;
(qm) Good standing certificates The Purchase Agreement, duly executed by the Originator and Seller, and a copy of all documents required to be delivered thereunder;
(n) Duly executed copies of the Fee Letter;
(o) A reassignment and termination agreement in form and substance satisfactory to the Administrator, with respect to the Seller issued by the Secretaries existing receivables purchase facility; and
(p) Copies of the States of Delaware and California.
(r) Good standing certificates with respect notices to the Originator issued by the Secretaries state Public Utility Commissions to which Parent is subject of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreementhereby.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that Servicer (on the Administrative Agent and each Purchaser Agent Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to Servicer (acting on the Administrative Agent and each Purchaser Agent:Company's behalf):
(a) A counterpart An Originator Assignment Certificate in the form of this Agreement and the other Transaction Documents Exhibit C from each Originator, duly completed, executed and delivered by the parties thereto.Originator;
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Originator approving the execution, delivery, and performance Transaction Documents to be delivered by the Seller of this Agreement it and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby and thereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of certified by the Secretary or Assistant Secretary of the Seller certifying Originator;
(c) Good standing certificates for the names and true signatures Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the officers jurisdiction of the Seller authorized to sign this Agreement Originator's organization and the other Transaction Documents (other than jurisdiction where the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.Originator's chief executive office is located;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate Servicer and the Company may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this subsection (d));
(e) The certificate of incorporation, certificate of formation or limited liability company agreement or other organizational document of the Originator authorized to sign this Agreement and Originator, duly certified by the other Transaction Documents (other than Secretary of State of the Ancillary Documents) to which it will be jurisdiction of the Originator's organization as of a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory recent date acceptable to the Administrative AgentServicer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it each duly certified by the Secretary or an Assistant Secretary of the Originator.;
(f) Acknowledgment copiesOriginals of the proper financing statements (Form UCC-1) that have been duly authorized and are suitable for filing and name the Originator as the debtor/seller and the Company as the secured party/purchaser (and the Issuer, as assignee of the Company) of the Receivables generated by the Originator as may be necessary under the UCC to perfect the Company's ownership interest in all Receivables and such other Related Rights, (including, without limitation, Related Security) in which an ownership or time stamped receipt security interest may be assigned to it hereunder;
(g) A written search report from a Person satisfactory to the Servicer listing all effective financing statements that name the Originator as debtor or seller and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (f) or under the UCC as in effect prior to July 1, 2001, together with copies of such financing statements (none of which, except for those (i) described in the foregoing subsection (f) or (ii) as to which proper financing statementsstatements (Form UCC-3), duly filed on or before the date of such initial Purchase executed and suitable for filing under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent Administrator may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator have been received by the Administrator, shall cover any Receivable or any Related Rights which are to be sold to the Seller.Company hereunder), and tax and judgment lien search reports from a Person satisfactory to the Servicer showing no evidence of such liens filed against the Originator;
(h) Completed UCC search reportsA favorable opinion of Gibson, dated on or shortly before the date of such initial PurchaseDunn & Crutcher LLP, listing all effective financing statements filed in the jurisdiction referred counsel to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, in form ▇▇▇ ▇▇bs▇▇▇▇e s▇▇▇▇▇▇▇▇ory to the Servicer and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Administrator;
(i) Copies A Company Note in favor of the Originator, duly executed Blocked Account Agreements with by the Blocked Account Banks.Company; and
(j) A favorable opinion certificate from an officer of Lily Ythe Originator to the effect that the Servicer and the Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, data processing report that it generates which are of the type that a proposed purchaser or lender would use to evaluate the Receivables, the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN TRANSFERRED BY WAY OF SALE OR CONTRIBUTION BY CHURCH & DWIGHT CO., INC., TO HARRISON STREET FUNDING, LLC PURSUANT TO A ▇▇ ▇▇▇▇ASE AND SALE AG▇▇▇▇▇▇▇, corporate counsel for the Originator and the SellerDATED AS OF JANUARY 16, addressed to the Administrative Agent2003, each PurchaserAS AMENDED, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) BETWEEN THE ORIGINATOR AND HARRISON STREET FUNDING, LLC; AND A favorable opinion of D▇▇▇▇ ▇▇▇▇ & WSECURITY INTEREST IN THE RE▇▇▇▇▇▇▇▇S DESCRIBED HEREIN HAS BEEN GRANTED TO MARKET STREET FUNDING CORPORATION PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, counsel for the Originator and the SellerDATED AS OF JANUARY 16, addressed to the Administrative Agent2003, each PurchaserAS AMENDED, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably requestAMONG CHURCH & DWIGHT CO.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W, INC., AS THE SERVICER, HARRISON STREET FUNDING, LLC, ▇▇▇▇▇▇▇ET STREET FUNDING CORPORATION AND PNC BANK, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably requestNATIONAL ASSOCIATION.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Sources: Purchase and Sale Agreement (Church & Dwight Co Inc /De/)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that Servicer (on the Administrative Agent and each Purchaser Agent Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to Servicer (acting on the Administrative Agent and each Purchaser Agent:Company's behalf):
(a) A counterpart An Originator Assignment Certificate in the form of this Agreement and EXHIBIT C from the other Transaction Documents Originator, duly completed, executed and delivered by the parties thereto.Originator;
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Originator approving the executionTransaction Documents to be delivered by it and the transactions 7 contemplated hereby and thereby, delivery, and performance certified by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the respective Secretary or Assistant Secretary of the Seller certifying Originator;
(c) Good standing certificates for the names and true signatures Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the officers jurisdiction of the Seller authorized to sign this Agreement Originator's incorporation and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last jurisdiction where such certificate delivered to it by the Seller.Originator's chief executive office is located;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate Servicer and the Company may conclusively rely until such time as Servicer shall receive from such Person a revised certificate meeting the requirements of this SUBSECTION (d));
(e) The certificate or articles of incorporation or other organizational document of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentOriginator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it duly certified by the Secretary of State of the jurisdiction of such Originator.'s incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator;
(f) Acknowledgment copies, or time stamped receipt copies Originals of the proper financing statementsstatements (Form UCC-1) that have been duly executed and name the Originator as the debtor/seller and the Company as the secured party/purchaser (and the Administrator, duly filed on as assignee of the Company) of the Receivables generated by the Originator as may be necessary or, in Servicer's or before the date of such initial Purchase Administrator's opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company's ownership interest in all Receivables and such other rights, accounts, instruments and moneys (with a first priorityincluding, without limitation, Related Security) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and in which an ownership or security interest may be assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary A written search report from a Person satisfactory to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Servicer listing all effective financing statements that name the Originator as debtor or seller and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing SUBSECTION (f) above that name the Seller or the Originator as debtor), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing SUBSECTION (f), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Servicer showing no evidence of such liens on any of filed against the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jh) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator Carton & ▇▇▇▇▇▇▇ and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇. ▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed in form and substance satisfactory to Servicer and the Administrator;
(i) The Company Note in favor of the Originator, duly executed by the Company; and
(j) A certificate from an officer of the Originator to the Administrative Agent, each Purchaser, each Purchaser Agent effect that the Servicer and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator have placed on the most recent, and the Sellerhave taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent data processing report or other books and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers records that it generates which are of the Seller’s and type that a proposed purchaser or lender would use to evaluate the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4Receivables, the Fee Letter and following legend (or the Engagement Lettersubstantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD BY THE ORIGINATOR TO KU RECEIVABLES LLC PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF FEBRUARY 6, 2001, AS AMENDED, BETWEEN KENTUCKY UTILITIES COMPANY, AND KU RECEIVABLES LLC; AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO MARKET STREET FUNDING CORPORATION, THREE RIVERS FUNDING CORPORATION AND THE OTHER PURCHASERS PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF FEBRUARY 6, 2001, AS AMENDED, AMONG KENTUCKY UTILITIES COMPANY, AS THE SERVICER, KU RECEIVABLES LLC, MARKET STREET FUNDING CORPORATION, THREE RIVERS FUNDING CORPORATION AND THE OTHER PURCHASERS THEREUNDER AND PNC BANK, NATIONAL ASSOCIATION AS ADMINISTRATOR.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Sources: Purchase and Sale Agreement (Louisville Gas & Electric Co /Ky/)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s ultimate assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s ultimate assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s ultimate assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s ultimate assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s ultimate assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the Seller in form requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and substance satisfactory to modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary, an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller, the Buyer as the buyer/first assignor, the SPV as the buyer/second assignor (and the Administrative Agent, for the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions benefit of the board of directors (or its designated committeeLenders, as secured party/ultimate assignee) of the Seller and Servicer authorizing Receivables generated by such Originator as may be necessary or, in the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary Buyer’s or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(with f) a first priority) written search report from a Person satisfactory to the interests of Buyer and the Administrative Agent (on behalf of itself, as the Purchaser Agents and the PurchasersBuyer’s ultimate assignee) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements that name each Originator as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions as PBGC) from a Person satisfactory to the Buyer and the Administrative Agent or any Purchaser Agent may request, (as the Buyer’s ultimate assignee) showing no evidence of such liens on any filed against such Originator;
(g) favorable opinions of counsel to the Pool AssetsOriginators, Pool Receivables, Contracts or Related Security.in form and substance reasonably satisfactory to the Buyer and the Administrative Agent; and
(h) evidence (i) Copies of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed Blocked Account Agreements with and delivered by it in connection herewith and (ii) that each of the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementBuyer’s ultimate assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Core Natural Resources, Inc.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form form, substance and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of each Originator approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.Secretary or Assistant Secretary of such Originator;
(b) Certified copies Good standing certificates for each Originator issued as of (i) a recent date acceptable to Servicer by the resolutions Secretary of State of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement such Originator's incorporation and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.jurisdiction where such Originator's chief executive office is located;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than such Originator) may conclusively rely until such time as the Company and the Servicer shall receive from Originator a revised certificate meeting the requirements of this subsection (c));
(d) The articles of incorporation of each Originator, duly certified by the Secretary of State of the jurisdiction of such Originator's incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed and name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the secured party/purchaser (other than and Issuer as assignee of the Ancillary DocumentsCompany) of the Receivables generated by such Originator and Related Rights or other, similar instruments or documents, as may be necessary or, in Servicer's or the Administrator's opinion, desirable under the UCC of all appropriate jurisdictions or any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which an ownership interest may be assigned to it will be hereunder;
(f) A written search report from a party. Until Person satisfactory to Servicer and the Administrative Agent receives Administrator listing all effective financing statements that name any Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (e), together with copies of such financing statements (none of which, except for those described in the foregoing subsection (e), shall cover any Receivable or any Related Right), and tax and judgment lien search reports from a subsequent incumbency certificate from Person satisfactory to Servicer and the Administrator showing no evidence of any liens filed against any Originator with respect to the Receivables or Related Rights;
(g) Favorable opinions of general counsel to the Originators, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Administrator;
(h) Completed UCC search reportsEvidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, dated on or shortly before the date delivery and effectiveness of such initial Purchase, listing all effective financing statements filed in other Transaction Documents has been satisfied to the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Company's satisfaction; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the each Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent effect that Servicer and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence have placed on the date of most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the initial Purchase under this Agreementfollowing legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO BAX FUNDING CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 15, 2000, AMONG BAX GLOBAL INC.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase, THE ORIGINATORS NAMED THEREIN AND BAX FUNDING CORPORATION; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO LIBERTY STREET FUNDING CORP.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereofPURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such dateDATED AS OF DECEMBER 15, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs2000, fees and expenses arising under or referenced in Section 6.4AMONG BAX GLOBAL INC., the Fee Letter and the Engagement LetterBAX FUNDING CORPORATION, LIBERTY STREET FUNDING CORP.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California, AND THE BANK OF NOVA SCOTIA, AS ADMINISTRATOR.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of pursuant to this Agreement is subject to the following conditions precedent that precedent:
(a) the Administrative Agent and each Purchaser Agent Agent, on the Purchaser's behalf, shall have received received, on or before the date of such initial Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent and each Purchaser Agent:
(ai) A counterpart of this The Sale Agreement and the any other Transaction Documents Document, duly executed and delivered by the parties thereto.;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the each Seller Party certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Administrative Agent and the Purchaser may conclusively rely until such time as the Administrative Agent, on the Purchaser's behalf, shall receive from such Seller Party a revised certificate meeting the requirements of this subsection (ii));
(iii) The Articles or Certificate of Incorporation of each Seller Party, duly certified by the Secretary of State of such Seller Party's state of incorporation, as of a recent date acceptable to Administrative Agent, on the Purchaser's behalf, in each case together with a copy of the by-laws of such Seller Party, duly certified by the Secretary or an Assistant Secretary of such Seller Party;
(iv) A true and complete copy of the resolutions of the Board of Directors of each Seller Party authorizing the execution, delivery and performance of this Receivables Purchase Agreement and the Transaction Documents to which it is a party and the transactions contemplated hereby and thereby;
(v) Copies of good standing certificates for each Seller Party, issued by the Secretaries of State of the state of incorporation of such Seller Party and the state where such Seller Party's principal place of business is located;
(vi) Executed, completed and proper (i) financing statements (Form UCC-1), in such form as the Administrative Agent, on the Purchaser's behalf, may reasonably request, naming each of the Originators as the debtor and seller of the Receivables and Related Rights, the Seller as the secured party and purchaser thereof and the Administrative Agent, as agent for the Purchaser, as assignee, and (ii) financing statements (Form UCC-1), in such form as the Administrative Agent, on the Purchaser's behalf, may reasonably request, naming the Seller as the debtor and seller of an undivided percentage interest in the Pool Receivables and Related Assets and the Purchaser as the secured party and purchaser thereof, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent, on the Purchaser's behalf, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by each Originator to the Seller of, and the Purchaser's undivided percentage interest in, the Pool Receivables and Related Assets;
(vii) Search reports provided in writing to the Administrative Agent, on the Purchaser's behalf, (i) listing all effective financing statements that name any Seller Party as debtor and that are filed in the jurisdictions in which filings are proposed to be made pursuant to subsection (vi) above and in such other jurisdictions that the Administrative Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the Ancillary Documentsfinancing statements described in subsection (vi) above) shall cover any Receivables or Related Assets, and (ii) listing all tax liens and judgment liens (if any) filed against any debtor referred to which it will be in clause (i) above in the jurisdictions described therein and showing no such Liens;
(viii) Evidence that the Initial Seller Notes have been duly executed and delivered by the Seller;
(ix) A favorable opinion of Davi▇ ▇▇▇▇ & ▇ard▇▇▇▇, ▇▇ecial counsel to the Seller Parties, as to:
(A) the existence of a party. Until "true sale" of the Receivables from the Originators to the Seller under the Sale Agreement; and
(B) the inapplicability of the doctrine of substantive consolidation to the Seller in connection with any bankruptcy proceeding involving any of the Originators;
(x) Favorable opinions of local counsel to the Seller Parties as to the creation of a first priority perfected security interest in favor of the Administrative Agent receives a subsequent incumbency certificate from Agent, as agent for the Purchaser, in (1) all Pool Receivables and Related Rights (and including specifically any undivided interest therein retained by Seller hereunder), the Sale Agreement and other Transaction Documents and (2) all proceeds of any of the foregoing;
(xi) Favorable opinions of Davi▇ ▇▇▇▇ & ▇ard▇▇▇▇, ▇▇ecial counsel to the Seller Parties, internal counsel to the Seller Parties, or local counsel to the Seller Parties as to;
(A) due authorization, execution, delivery, enforceability and other corporate matters of the Seller Parties and the Originators as to the Transaction Documents;
(B) the creation under New York law of (1) a security interest in favor of the Seller in (x) all Receivables and Related Rights and (y) all proceeds of any of the foregoing pursuant to the Sale Agreement and (2) a security interest in favor of the Administrative Agent, as agent for the Purchaser, in (1) all Pool Receivables and Related Assets, the Sale Agreement and other Transaction Documents and (2) all proceeds of any of the foregoing, pursuant to this Agreement; and
(C) such other matters as the Administrative Agent, acting on behalf of the Purchaser, may reasonably request.
(xii) A pro forma Settlement Report, prepared as of the Cut-Off Date of May 31, 2000;
(xiii) A report in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered Purchaser's behalf, from the Initial Due Diligence Auditor as to it a pre-closing due diligence audit by the Seller.Initial Due Diligence Auditor;
(dxiv) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the executionThe Liquidity Agreement, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it Purchaser's behalf, duly executed by the Originator.
(f) Acknowledgment copiesPurchaser, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Liquidity Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Liquidity Bank;
(gxv) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports Lockbox Agreements with respect to judgment liens, federal tax liens each Lockbox Account and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.Agreement;
(jxvi) A favorable opinion With respect to MascoTech, a consolidated balance sheet, income statement and statement of Lily Y▇▇ ▇▇▇▇▇▇▇shareholders' equity as at December 31, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to 1999; and
(xvii) such other matters agreements, instruments, certificates, opinions and other documents as the Administrative Agent may reasonably request.; and
(kb) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for MascoTech shall have paid (i) the Originator Structuring Fee and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request(ii) all Transaction Fees.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart copy of the resolutions of the Board of Directors of Originator approving this Agreement and the other Transaction Documents duly executed and delivered transactions contemplated hereby, certified by the parties thereto.Secretary or Assistant Secretary of Originator;
(b) Certified copies Good standing certificates, or bring downs, for Originator issued as of (i) a recent date acceptable to Servicer by the resolutions Secretary of State of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Originator's incorporation;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate Servicer and the Company may conclusively rely until such time as Servicer shall receive from such Person a revised certificate meeting the requirements of this subsection (d));
(d) The certificate or articles of incorporation or other organizational document of Originator, duly certified by the Secretary of State of the jurisdiction of Originator's incorporation as of [date of latest certified copy], together with a copy of the by-laws of Originator, each duly certified by the Secretary or an Assistant Secretary of Originator;
(e) Originals of duly executed financing statements (Form UCC-1) naming Originator as the assignor and the Company as the assignee of the Originator authorized Accounts generated by Originator as may be necessary or, in Servicer's or the Agent's opinion, desirable under the UCC of all appropriate jurisdictions to sign this Agreement perfect the Company's ownership interest in all Originator Accounts and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest may be assigned to it hereunder;
(f) A written search report from a Person satisfactory to Servicer listing all effective financing statements that name Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (f), together with copies of such financing statements (none of which, except for those described in the foregoing subsection (f), shall cover any Originator Account or any Related Rights (unless released or terminated by duly executed termination statements delivered to the Company in proper form for filing and acceptable to the Company and the other Transaction Documents Agent) which is to be sold to the Company hereunder), and tax and judgment lien search reports from a Person satisfactory to the Company showing no evidence of such liens filed against Originator;
(other than g) A favorable opinion of counsel to the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator Originator, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.;
(h) Completed UCC search reportsA Company Note in favor of Originator, dated on or shortly before duly executed by the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Company; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with Originator to the Blocked Account Banks.
(j) A favorable opinion effect that Servicer and Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, data processing report that it generates which are of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the type that a proposed purchaser or lender would use to evaluate the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4Accounts, the Fee Letter and following legend (or the Engagement Lettersubstantive equivalent thereof): "THE ORIGINATOR ACCOUNTS DESCRIBED HEREIN HAVE BEEN SOLD TO PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF MAY 10, 2005, AS AMENDED, BETWEEN WERNER CO. AND WERNER FUNDING CORPORATION.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Werner Holding Co Inc /Pa/)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and each Purchaser Agent the Administrator (as the Company’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser Agent:the Administrator (as the Company’s assignee):
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates for each Originator issued as of a recent date reasonably acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State of the Seller authorizing the execution, delivery, jurisdiction of such Originator’s organization and performance by the Seller each jurisdiction where such Originator conducts a material portion of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.its business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator (as the Company’s assignee) may conclusively rely until such time as the Servicer, the Company and the Administrator (as the Company’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation, certificate of formation or other organizational document of each Originator duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or limited liability company agreement of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Forms of financing statements (Form UCC-1) that name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the buyer/assignor (other than and the Ancillary DocumentsAdministrator, for the benefit of the Purchasers, as secured party/assignee) to which it will of the Receivables sold by such Originator as may be a party. Until necessary or, in the Administrative Agent receives a subsequent incumbency certificate from Company’s or the Originator in form and substance satisfactory to the Administrative AgentAdministrator’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership interest in all Receivables and Related Rights (with a first priorityincluding, without limitation, Related Security) in which an ownership or security interest has been assigned to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Company hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC Written search reports, dated on or shortly before the date of such initial Purchase, results listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or the Originator as debtorsellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) and/or those which are released or terminated, as the case may be, on or prior to the Closing Date, shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and similar tax and judgment lien search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, results showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jg) A favorable opinion of Lily Y▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP, counsel for to the Originators, in form and substance reasonably satisfactory to the Company and the Administrator (as the Company’s assignee);
(h) A Company Note in favor of each Originator, duly executed by the Company;
(i) Evidence of the execution and delivery by each Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form Company of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect other Transaction Documents to the transactions contemplated by this Agreement.
(u) Receipt be executed and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released delivered in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.connection herewith; and
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a1) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of each Originator approving the Transaction Documents to be delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(2) Good standing certificates for each Originator issued as of a recent date acceptable to the Company by the Secretary of State of the Seller authorizing the execution, delivery, jurisdiction of such Originator's organization and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) each jurisdiction where such Originator is qualified to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transact business;
(c3) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Servicer and the Company may conclusively rely until such time as the Servicer and the Company shall receive from such Person a revised certificate meeting the requirements of this CLAUSE (c));
(4) The certificate or articles of incorporation or other organizational document of each Originator duly certified by the Secretary of State of the jurisdiction of such Originator's organization as of a recent date, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(5) Originals of the proper financing statements (Form UCC-1) that have been duly executed and name each Originator authorized to sign this Agreement as the debtor/seller and the Company as the secured party/purchaser (and the Purchaser, as assignee of the Company) of the Receivables generated by such Originator as may be necessary or, in the Company's or the Agent's opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and such other Transaction Documents rights, accounts, instruments and moneys (other than including, without limitation, Related Security) in which an ownership or security interest may be assigned to it hereunder;
(6) A written search report from a Person satisfactory to the Ancillary DocumentsCompany listing all effective financing statements that name the Originators as debtors or sellers and that are filed in the jurisdictions in which filings were made pursuant to the foregoing CLAUSE (e), together with copies of such financing statements (none of which, except for those described in the foregoing CLAUSE (e), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and tax and judgment lien search reports from a Person satisfactory to the Company showing no evidence of such liens filed against any Originator;
(7) A favorable opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator Originators, in form and substance satisfactory to the Administrative Company and the Agent; and
(8) A Company Note in favor of each Originator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it duly executed by the OriginatorCompany.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of the Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of the Originator;
(b) Certified copies good standing certificates for the Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board of directors jurisdiction of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Originator’s organization or formation;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the Seller in form requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of the Originator (including all amendments and substance satisfactory to modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of the Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of the Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary, an Assistant Secretary of the Originator;
(e) forms of financing statements (Form UCC-1) that name the Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions benefit of the board of directors (or its designated committeeLenders, as secured party/assignee) of the Seller and Servicer authorizing the execution, delivery, and performance Receivables sold or contributed by the Seller and Servicer of this Agreement and Originator as may be necessary or, in the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary Buyer’s or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Buyer’s ownership or security interest in such Receivables and the Purchasers) contemplated by the Agreement and Related Rights in which an ownership or security interest has been assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC a written search reports, dated on or shortly before the date of such initial Purchase, results listing all effective financing statements that name the Originator as debtor or seller and that are filed in the Originator’s jurisdiction referred of organization and all other jurisdictions in which filings may be made against such Person pursuant to in clause (f) above that name the Seller or the Originator applicable UCC for applicable as debtorextracted collateral, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (or released or terminated, as the case may be, on or prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens, federal tax liens and results (including liens of the Pension Benefit Guaranty Corporation PBGC) showing no evidence of such liens filed against the Originator;
(g) favorable opinions of counsel to the Originator, in such jurisdictions as form and substance reasonably satisfactory to the Buyer and the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Agent; and
(h) evidence (i) Copies of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed Blocked Account Agreements with and delivered by it in connection herewith and (ii) that each of the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementBuyer’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchaser shall not be obligated to make any Purchase after effectiveness of under this Agreement is subject Agreement, nor shall the Purchaser or Administrative Agent be obligated to take, fulfill, or perform any other action hereunder, unless and until the following conditions precedent that the have been satisfied or provided for in a manner satisfactory to FSA, Administrative Agent and each the Purchaser Agent shall have received on or before the date of such Purchaseand/or waived in writing by FSA, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agentthe Purchaser:
(a) A counterpart of this Agreement the Purchaser shall have received in form and substance satisfactory to FSA, the Purchaser and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate Administrative Agent certificates of the Secretary or Assistant Secretary of the Seller Seller, the Servicer, Motor Coach and the Transferors certifying the names and true signatures of the their respective officers of the Seller authorized to sign this Agreement Agreement, the Related Documents, and the other Transaction Documents documents to be delivered by them hereunder or thereunder or in connection herewith or therewith, evidence of corporate authorization of the transactions contemplated hereby or thereby, the articles of incorporation (other than attached and appropriately certified by the Ancillary DocumentsSecretary of State of their respective jurisdiction of incorporation) to which it will be a party. Until and the Administrative Agent receives a subsequent incumbency certificate from by-laws, and all amendments thereto, of each of them;
(b) the Seller Purchaser and FSA shall have received in form and substance satisfactory to the Administrative AgentPurchaser, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper FSA executed financing statements, duly to be filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Purchaser, the Administrative Agent and each Purchaser Agent FSA may deem necessary or desirable in order (i) to perfect (with a first priority) to the interests of the Administrative Agent (on behalf of itselfextent contemplated by SECTION 4.01(q), the Purchaser Agents and the Purchasers) Purchaser's interests contemplated by the this Agreement and (ii) to perfect (with a first priority) the ownership interests of the Seller as contemplated in the Receivables purchased by the Receivables Sale Agreement.Seller from the Transferors pursuant to the Transfer Agreements, except to the extent any filings or other actions are necessary to convey the interest in the related Vehicles under the applicable titling laws;
(gc) Acknowledgment copiesthe Purchaser and FSA shall have received in form and substance satisfactory to the Purchaser, Administrative Agent and FSA completed requests for information listing all effective financing statements filed in the jurisdictions referred to in SECTION 3.01(b) above that name the Seller or time stamped receipt a Transferor as debtor, together with copies of proper terminations such financing statements (none of financing which shall cover any Purchased Receivables, the related Contracts or the related Vehicles) or any interest therein;
(d) the Purchaser and FSA shall have received in form and substance satisfactory to the Purchaser, the Administrative Agent and FSA executed UCC termination statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, the related Contracts or Related Security the Vehicles previously granted by the Originator Seller, any Transferor or the Seller.Motor Coach;
(he) Completed UCC search reportsthe Purchaser and FSA shall have received in form and substance satisfactory to the Purchaser, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any and FSA favorable opinions of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator Seller, the Servicer, Motor Coach and the SellerTransferors, addressed in form and substance satisfactory to the Administrative Agent, each Purchaser, each Purchaser the Administrative Agent and each Alternate Purchaser substantially in the form of Annex E and FSA, as to such other matters as the Administrative Agent may reasonably request.;
(kf) A favorable opinion no Servicer Termination Event or Insurance Agreement Event of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for Default shall have occurred and be continuing or would result after giving effect to any of the Originator and transactions contemplated on the Seller, addressed Initial Closing Date;
(g) the Seller shall have paid to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.fees payable (if any) in accordance with the SPARC Fee Letter;
(lh) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller Purchaser and the Originator, addressed FSA shall have received in form and substance satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good FSA good standing certificates with respect to the Seller issued Seller, the Servicer, Motor Coach and the Transferors from the Secretary of the State of the respective States of incorporation of the Seller, the Servicer, Motor Coach and the Transferors;
(i) the Purchaser and FSA shall have received in form and substance satisfactory to the Purchaser, the Administrative Agent and FSA the Related Documents executed by each of the Persons party thereto;
(j) the Purchaser and FSA shall have received in form and substance satisfactory to the Purchaser, the Administrative Agent and FSA evidence that the Cash Collateral Account has been established with an Eligible Institution and that such Cash Collateral Account is in the name of Administrative Agent, for the benefit of the Purchaser and FSA;
(k) the Purchaser and FSA shall have received in form and substance satisfactory to the Purchaser, the Administrative Agent and FSA such other documents as the Purchaser, FSA or the Administrative Agent shall have reasonably requested;
(l) the Purchaser and FSA shall have received evidence from each rating agency that this Agreement and the transactions contemplated hereby have at least an investment grade "shadow" rating;
(m) FSA shall have received notice from S&P of FSA's capital charge for the current transaction without giving effect to the Policy;
(n) the Administrative Agent shall have received the original Transaction Letter of Credit executed by the Secretaries Transaction L/C Issuer;
(o) the Purchaser, Administrative Agent and FSA shall have received satisfactory evidence that the Seller, Motor Coach, the Transferors and the other parties to the Related Documents have obtained all required licenses, consents and approvals of all Persons including all requisite Governmental Authorities, to the States execution, delivery and performance of Delaware this Agreement and California.the other Related Documents;
(p) the Administrative Agent and FSA shall have received an executed Lockbox Agreement with respect to each Lockbox Account;
(q) the Purchaser and FSA shall have received in form and substance satisfactory to the Purchaser and FSA, the executed pay-off letters reasonably requested by the Purchaser, the Administrative Agent or FSA; and
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from FSA shall have reviewed each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined Contract Files in the GE Receivables Funding Agreement) have been paid in full possession of General Electric Capital Corporation or any agent thereof and all obligations FSA shall be satisfied with the results of the Seller and the Servicer thereunder have been terminatedsuch review.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Motor Coach Industries International Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Company, the Administrative Agent (as the Company’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Company and the Administrative Agent and each Purchaser Agent:(as the Company’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of the Transferor, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of the Transferor;
(b) Certified copies good standing certificates for the Transferor issued as of a recent date acceptable to the Company and the Administrative Agent (ias the Company’s assignee) by the resolutions Secretary of State (or similar official) of the board of directors jurisdiction of the Seller authorizing Transferor’s organization or formation and each other jurisdiction where the executionTransferor is required to be qualified to transact business, delivery, and performance by except where the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller Transferor, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Company, the Administrative Agent receives (as the Company’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Company, the Administrative Agent (as the Company’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the Seller in form requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of the Transferor (including all amendments and substance satisfactory to modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of the Transferor’s organization as of a recent date, together with a copy of the by-laws or other governing documents of the Transferor (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary, an Assistant Secretary of the Transferor;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name the Transferor as the debtor/seller and the Company as the buyer/assignor (and the Administrative Agent, for the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions benefit of the board of directors (or its designated committeeLenders, as secured party/assignee) of the Seller and Servicer authorizing the execution, delivery, and performance Receivables generated by the Seller and Servicer of this Agreement and Transferor as may be necessary or, in the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary Company’s or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(with f) a first priority) written search report from a Person satisfactory to the interests of Company and the Administrative Agent (on behalf of itself, as the Purchaser Agents and the PurchasersCompany’s assignee) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Transferor as debtor or seller and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions as PBGC) from a Person satisfactory to the Company and the Administrative Agent or any Purchaser Agent may request, (as the Company’s assignee) showing no evidence of such liens on any filed against the Transferor;
(g) favorable opinions of counsel to the Pool AssetsTransferor, Pool Receivables, Contracts or Related Security.in form and substance reasonably satisfactory to the Company and the Administrative Agent;
(h) [reserved]; and
(i) Copies evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed Blocked Account Agreements with and delivered by it in connection herewith and (ii) that each of the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerCompany’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementCompany’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Core Natural Resources, Inc.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Buyer and each Purchaser Agent Regions Bank (as the Buyer’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent Buyer and each Purchaser Agent:Regions Bank (as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and Regions Bank (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (on which certificate the Buyer and Regions Bank (as the Buyer’s assignee) may conclusively rely until such time as the Buyer and Regions Bank (as the Buyer’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other than organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Ancillary DocumentsSecretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and Regions Bank, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or Regions Bank’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it will hereunder;
(f) a written search report from a Person satisfactory to the Buyer and Regions Bank (as the Buyer’s assignee) listing all effective financing statements that name any Originator as debtor or seller and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a party. Until Person satisfactory to the Administrative Agent receives a subsequent incumbency certificate from Buyer and Regions Bank (as the Seller Buyer’s assignee) showing no evidence of such liens filed against such Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer and Regions Bank;
(h) a copy of a Subordinated Note in favor of each Originator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it duly executed by the Seller.Buyer;
(d) Certified copies of (i) the resolutions bankruptcy filing search reports against each of the board Originators in its state of directors incorporation and in the state where its chief executive office is located, and
(or its designated committeej) evidence (i) of the Seller execution and Servicer authorizing delivery by each of the execution, delivery, and performance by the Seller and Servicer parties thereto of this Agreement and each of the other Transaction Documents (other than the Ancillary Documents) to which be executed and delivered by it will be a party, in connection herewith and (ii) all documents evidencing other necessary corporate that each of the conditions precedent to the execution, delivery and shareholder action and governmental approvals, if any, with respect to this Agreement and the effectiveness of such other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory has been satisfied to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
Buyer’s and Regions Bank’s (f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityBuyer’s assignee) satisfaction.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (StarTek, Inc.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness purchase of a Receivable Interest under this Agreement is subject to the following conditions precedent that that:
(a) The transactions contemplated by the Administrative Agent and each Purchaser Bombardier Inc. Purchase Agreement shall have been consummated on or before the date of such purchase; and
(b) The Operating Agent shall have received on or before the date of such Purchasepurchase the following, each (unless otherwise indicated) dated such date, in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Operating Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(bi) Certified copies of (i) the resolutions of the board Board of directors Directors or equivalent body of the Seller authorizing and each of the execution, delivery, and performance by the Seller of Originators approving this Agreement and the any other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, (ii) party and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the any such other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(cii) A certificate of the Managing Director, Secretary or Assistant Secretary of the Seller and each of the Originators certifying the names and true signatures of the officers of the Seller and each of the Originators authorized to sign this Agreement and Agreement, the other Transaction Documents (and the other than the Ancillary Documents) documents to which be delivered by it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form hereunder and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Sellerthereunder.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, copies or time stamped receipt copies (or other satisfactory evidence of filing) of proper financing statements, duly filed on or before the date of such initial Purchase purchase under the UCC and PPSA or other applicable law of all jurisdictions (other than the Province of Quebec) and copies of proper forms RG for registration under the laws of the Province of Quebec, in each case that the Administrative Agent and each Purchaser Operating Agent may deem necessary or desirable in order to perfect (with a first priority) or render opposable the ownership and security interests of the Administrative Agent (on behalf of itself, the Purchaser Agents contemplated by this Agreement and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreementother Transaction Documents.
(giv) Acknowledgment copies, copies or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person in (other than i) the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Seller or any Originator or and (ii) the Sellercollateral security referred to in Section 2.11 previously granted by the Seller including, (a) without limitation, the liens and charges currently registered with respect to Bombardier Nordtrac AB in Sweden and (b) UCC and other equivalent forms executed by the Bank of Montreal as Administrative Agent under the Originators’ bank credit facility.
(hv) Completed UCC search reportsrequests for information, dated on or shortly before the date of such initial Purchasepurchase, listing all effective financing statements filed in the jurisdiction jurisdictions referred to in clause subsection (fiii) above that name the Seller or the any Originator as debtor, together with copies (except that copies will not be required for jurisdictions outside the United States) of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts Contracts, Related Security or Related Securitythe collateral security referred to in Section 2.11).
(ivi) Copies An executed copy of executed Blocked each of the Deposit Account Agreements with the Blocked Account BanksAgreements.
(jvii) A favorable opinion or opinions of Lily Y(i) Ropes & ▇▇▇▇ LLP, U.S. counsel for the Seller, Bombardier Motor and the Parent, (ii) Osler, ▇▇▇▇▇▇ & Harcourt, LLP, Canadian counsel for the Parent and (iii) Advokatfirman ▇▇▇▇▇ KB, Thommessen ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ AS Advokatfirma and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attorneys at Law Ltd., corporate Swedish, Norwegian and Finnish counsel for the Originator and members of the SellerNordtrac Group, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form forms of Annex E Annexes C-l, C-2, C-3, C-4 and C-5 hereto and as to such other matters as the Administrative Operating Agent may reasonably request.
(kviii) The Funds Transfer Letter.
(ix) An executed copy of the Originator Purchase Agreement, together with satisfactory evidence that all conditions precedent to the initial purchase thereunder have been satisfied.
(x) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the by-laws or equivalent document of the Seller and each of the Originators, counsel for certified by the Manager, Secretary or Assistant Secretary of the Seller or the relevant Originator, as the case may be.
(xi) A copy of the certificate or articles of incorporation or equivalent document of the Seller and each of the Originators, certified as of a recent date by the Secretary of State or other appropriate official of the state or country of its organization, and a certificate as to the good standing of the Seller and each Originator and from such Secretary of State or other official, dated as of a recent date.
(xii) A letter from the Seller, Seller addressed to the Administrative AgentOperating Agent setting forth, each Purchaseramong other things, each Purchaser Agent the Seller’s initial capital contribution and each Alternate Purchaser substantially in the form amount of Annex F and as to such other matters as the Administrative Agent may reasonably requestDeferred Purchase Price immediately following the initial purchase under the Originator Purchase Agreement.
(lxiii) An executed copy of each of the Undertakings.
(xiv) Executed copies of letters from CT Corporation accepting its appointment as agent for service of process for Bombardier Nordtrac AB, Bombardier Nordtrac AS, Bombardier-Nordtrac Oy, the Parent and the Servicers (other than Bombardier Motor) under any Transaction Document to which Bombardier Nordtrac AB, Bombardier Nordtrac AS, Bombardier-Nordtrac Oy, the Parent and such Servicers are parties.
(xv) A favorable opinion Monthly Seller Report prepared as of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇December 12, counsel for 2003.
(xvi) An executed copy of a Repurchase Agreement among BCL, BCI, the Seller and the OriginatorOriginators, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers respect of the Sellertermination of BCL’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review financing of the SellerNordtrac Group’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this AgreementReceivables.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (BRP Japan Co. Ltd.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase and contribution hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseInitial Closing Date, the following, each (unless otherwise indicated) dated the Initial Closing Date, and each in form form, substance and substance (including the date thereof) reasonably satisfactory to the Company and the Administrative Agent and each Purchaser Agent:
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of each Seller approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.Secretary or Assistant Secretary of such Seller;
(b) Certified copies Good standing certificate for each Seller issued as of (i) a recent date by the resolutions Secretary of State of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.its incorporation;
(c) A certificate of the Secretary or Assistant Secretary of the each Seller certifying the names and true signatures of the officers authorized on such Seller's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and the Master Servicer (if other than MascoTech) may conclusively rely until such time as the Company and the Master Servicer shall receive from such Seller a revised certificate meeting the requirements of this subsection (c);
(d) The articles of incorporation of such Seller, duly certified by the Secretary of State of the jurisdiction of its incorporation as of a recent date, together with a copy of the by-laws of such Seller, duly certified by the Secretary or an Assistant Secretary of such Seller;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed and name each Seller authorized to sign this Agreement as the assignor and the other Transaction Documents Company as the assignee (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, as agent for the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions Secured Parties, as assignee of the board of directors (or its designated committeeCompany) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement Transferred Receivables and the other Transaction Documents (other than Related Rights or other, similar instruments or documents, as may be necessary or, in the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary Master Servicer's or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that or any comparable law of all appropriate jurisdictions to perfect the Company's interest in all such Receivables and Related Rights in which such interest may be assigned to it hereunder;
(f) A written search report from a Person satisfactory to the Master Servicer and the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements that name any Seller (and, in the case of MascoTech, any Participating Division) as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings are proposed to in clause be made pursuant to the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e) shall cover any Transferred Receivable or any Related Right related to any such Receivable which is to be sold to the Company hereunder), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens the Master Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent showing no evidence of such liens filed against any Seller (and, in the case of MascoTech, any of MascoTech or any Purchaser Agent may request, showing no such liens on any Participating Division);
(g) Evidence (i) of the Pool Assetsexecution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, Pool Receivablesdelivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction;
(h) The Initial Seller Notes in favor of each Seller, Contracts or Related Security.each duly executed by the Company; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed each Seller to the Administrative Agent, each Purchaser, each Purchaser Agent effect that the Master Servicer and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence have placed on the date of most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the initial Purchase under this Agreementfollowing legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO MTSPC, INC. PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF JUNE 22, 2000, AS AMENDED FROM TIME TO TIME, AND AN OWNERSHIP AND SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND ASSIGNED TO BLUE RIDGE ASSET FUNDING CORPORATION, PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF JUNE 22, 2000, AMONG MTSPC, INC.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase, BLUE RIDGE ASSET FUNDING CORPORATION AND CERTAIN OTHER PARTIES, AS AMENDED FROM TIME TO TIME.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial ---------------------------------------- Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received received, on or before the date of such PurchaseInitial Funding Date, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart copy of this Agreement the resolutions of the Board of Directors of each Transferor approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed and delivered transactions contemplated thereby, certified by the parties thereto.its Secretary or Assistant Secretary;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance A good standing certificate for each Transferor issued by the Seller jurisdiction of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Sellerits formation.
(c) A certificate of the Secretary or Assistant Secretary of the Seller each Transferor certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it (other than on which certificate the Ancillary Documents) to which it will be Administrator and Purchaser may conclusively rely until such time as the Administrator shall receive from Seller a party. Until revised certificate meeting the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.requirements of this subsection (c)); ---------------
(d) Certified copies The organizational documents of (i) the resolutions of the board of directors (each Transferor, duly certified by its Secretary or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.Assistant Secretary;
(e) A certificate Such proper financing statements (Form UCC-1), to be filed against the Transferors, as may be necessary or, in the opinion of the Secretary Administrator, desirable under the UCC or Assistant Secretary any comparable law of all appropriate jurisdictions to perfect Purchaser's interests in the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.Pool Assets;
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before A search report provided in writing to the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial PurchaseAdministrator, listing all effective financing statements that name a Transferor as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fe) above and in such other jurisdictions -------------- that name the Seller or the Originator as debtorAdministrator shall reasonably request, together with copies of such financing statementsstatements (none of which shall cover any Pool Assets);
(g) A list of the Lock-Box Banks, and similar search reports duly executed copies of Lock-Box Agreements with each of the Lock-Box Banks;
(h) Favorable opinions of counsel to the Transferors, in form and substance reasonably satisfactory to the Administrator and with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation such matters as are set forth in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Schedule 5.01(h);
(i) Copies Such powers of executed Blocked Account Agreements with attorney as the Blocked Account Banks.Administrator shall reasonably request to enable the Administrator to collect all amounts due under any and all Pool Receivables;
(j) A favorable opinion pro forma Information Package, prepared in respect of Lily Y▇▇ ▇▇▇▇▇▇▇--- ----- the proposed initial Purchase, corporate counsel for the Originator and the Seller, addressed assuming a Cut-Off Date of no more than 3 Business Days prior to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.Initial Funding Date;
(k) A favorable opinion Fully executed copies of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the First Tier Agreement, counsel for the Originator Second Tier Agreement, the Spread Account Agreement, the ES Agreement, the SA Bank Security Agreement and the SellerSpecified Supplement, addressed each of which agreements shall be in form and substance reasonably satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.Administrator;
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative AgentThe Liquidity Agreements, each duly executed by Purchaser, each Purchaser the Liquidity Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.Liquidity Bank;
(m) A favorable opinion Written approval by the Credit Bank of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator this Agreement and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.transactions contemplated hereby;
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Commercial Paper Notes, confirming in effect that the existing ratings of the Commercial Paper Notes of each Conduit Purchaser confirming the rating of its Notes will remain in effect after giving effect to the transactions contemplated by this Agreement.hereby; and
(uo) Receipt and satisfactory review of the final Protiviti audit reportThe Fee Letter, duly executed by Seller.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Charming Shoppes Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Servicer (on the Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:Servicer (acting on the Company's behalf):
(a) A counterpart An Originator Assignment Certificate in the form of this Agreement and the other Transaction Documents Exhibit B from each Originator, duly completed, executed and delivered by the parties thereto.each Originator; Purchase and Sale Agreement
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors of each Originator approving the Seller authorizing Transaction Documents to be delivered by it and the executiontransactions contemplated hereby and thereby, delivery, and performance certified by the Seller Secretary or Assistant Secretary of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator;
(c) Good standing certificates for each Originator issued as of a recent date acceptable to the Servicer by the Secretary of State of the jurisdiction of such Originator's organization and each jurisdiction where such Originator is qualified to transact business;
(d) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Servicer and the Company may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this clause (d));
(e) The certificate or articles of incorporation or other organizational document of each Originator duly certified by the Secretary of State of the jurisdiction of such Originator's organization as of a recent date, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(f) Originals of the proper financing statements (Form UCC-1) that have been duly executed and are suitable for filing and name each Originator authorized to sign this Agreement as the debtor/seller and the Company as the secured party/purchaser (and the Issuer, as assignee of the Company) of the Receivables generated by such Originator as may be necessary or, in the Servicer's or the Administrator's opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and such other Transaction Documents rights, accounts, instruments and moneys (other than including, without limitation, Related Security) in which an ownership or security interest may be assigned to it hereunder;
(g) A written search report from a Person satisfactory to the Ancillary DocumentsServicer listing all effective financing statements that name the Originators as debtors or sellers and that are filed in the jurisdictions in which filings were made pursuant to the foregoing clause (f), together with copies of such financing statements (none of which, except for those described in the foregoing clause (f), shall cover any Receivable or any Related Rights which are to be sold to the Company hereunder), and tax and judgment lien search reports from a Person satisfactory to the Servicer showing no evidence of such liens filed against any Originator;
(h) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator Originators, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Administrator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.[Reserved]
(j) A favorable opinion certificate from an officer of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the each Originator and the Seller, addressed to the Administrative Agenteffect that the Servicer and such Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each Purchasersubsequent, each Purchaser Agent data processing report that it Purchase and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers Sale Agreement generates which are of the Seller’s and type that a proposed purchaser or lender would use to evaluate the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4Receivables, the Fee Letter and following legend (or the Engagement Lettersubstantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN CONTRIBUTED OR SOLD PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF APRIL 30, 2001, AS THE SAME MAY FROM TO TIME TO TIME BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED, AMONG CERTAIN ENTITIES LISTED ON SCHEDULE I THERETO, AS ORIGINATORS, CSS INDUSTRIES, INC. AND CSS FUNDING LLC, AS PURCHASER, AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO MARKET STREET FUNDING CORPORATION PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF APRIL 30, 2001 AS THE SAME MAY FROM TO TIME TO TIME BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED, AMONG CSS FUNDING LLC, AS SELLER, CSS INDUSTRIES, INC.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California, AS SERVICER, MARKET STREET FUNDING CORPORATION, AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form form, substance and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) a. A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of each Originator approving the Transaction Documents to be delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
b. Good standing certificates for each Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the Seller authorizing the execution, delivery, and performance by the Seller jurisdiction of this Agreement such Originator's incorporation and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.jurisdiction where such Originator's chief executive office is located;
(c) c. A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than such Originator) may conclusively rely until such time as the Company and the Servicer shall receive from such Originator a revised certificate meeting the requirements of this subsection (c));
d. The articles of incorporation of each Originator, duly certified by the Secretary of State of the jurisdiction of such Originator's incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
e. Copies of the proper financing statements (Form UCC-1) that have been duly executed or authorized, as applicable, and name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the secured party/purchaser (other than and the Ancillary DocumentsCollateral Agent as assignee of the Company) of the Receivables generated by such Originator and Related Rights or other, similar instruments or documents, as may be necessary or, in Servicer's or any Funding Agent's opinion, desirable under the UCC of all appropriate jurisdictions or any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which an ownership interest may be assigned to it will be hereunder;
f. A written search report from a party. Until Person satisfactory to Servicer and the Administrative Agent receives Funding Agents listing all effective financing statements that name any Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (e), together with copies of such financing statements (none of which, except for those described in the foregoing subsection (e), shall cover any Receivable or any Related Right), and tax and judgment lien search reports from a subsequent incumbency certificate from Person satisfactory to Servicer and the Funding Agents showing no evidence of any liens filed against any Originator with respect to the Receivables or Related Rights;
g. Favorable opinions of general counsel to each of the Originators, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Funding Agents;
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
h. Evidence (i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming of the rating other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of its Notes after giving effect the conditions precedent to the transactions contemplated by this Agreementexecution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction; and
i. A certificate from an officer of each Originator to the effect that Servicer and Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO SEQUA RECEIVABLES CORP. PURSUANT TO AN AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, DATED AS OF APRIL 30, 2004, AMONG SEQUA CORPORATION, THE ORIGINATORS NAMED THEREIN AND SEQUA RECEIVABLES CORP.
(u) Receipt and satisfactory review of the final Protiviti audit report; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO THE BANK OF NOVA SCOTIA, AS COLLATERAL AGENT, PURSUANT TO AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF APRIL 30, 2004, AMONG SEQUA CORPORATION, SEQUA RECEIVABLES CORP.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedTHE VARIOUS CP CONDUIT PURCHASERS, COMMITTED PURCHASERS AND FUNDING AGENTS FROM TIME TO TIME PARTY THERETO AND THE BANK OF NOVA SCOTIA, AS COLLATERAL AGENT."
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of pursuant to this Agreement is subject to the following conditions precedent that precedent:
(a) the Administrative Agent and each Purchaser Agent Agent, on the Purchaser's behalf, shall have received received, on or before the date of such initial Purchase, the following each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent and each Purchaser Agent:
(ai) A counterpart of this The Sale Agreement and the any other Transaction Documents Document, duly executed and delivered by the parties thereto.;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the each Seller Party certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (other than on which certificate the Ancillary DocumentsAdministrative Agent and the Purchaser may conclusively rely until such time as the Administrative Agent, on the Purchaser's behalf, shall receive from such Seller Party a revised certificate meeting the requirements of this subsection (ii));
(iii) The Articles or Certificate of Incorporation of each Seller Party, duly certified by the Secretary of State of such Seller Party's state of incorporation, as of a recent date acceptable to Administrative Agent, on the Purchaser's behalf, in each case together with a copy of the by-laws of such Seller Party, duly certified by the Secretary or an Assistant Secretary of such Seller Party;
(iv) A true and complete copy of the resolutions of the Board of Directors of each Seller Party authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which it will be is a party. Until party and the Administrative Agent receives a subsequent incumbency certificate from transactions contemplated hereby and thereby;
(v) Copies of good standing certificates for each Seller Party, issued by the Secretaries of State of the state of incorporation of such Seller in form Party and substance satisfactory the state where such Seller Party's principal place of business is located;
(vi) Acknowledgment copies (or other evidence of filing reasonably acceptable to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(dPurchaser's behalf) Certified copies of (iA) the resolutions of the board of directors proper financing statements (or its designated committee) of the Seller and Servicer authorizing the executionForm UCC-1), delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in such form and substance satisfactory to as the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copiesPurchaser's behalf, or time stamped receipt copies of proper financing statementsmay reasonably request, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and naming each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, Originators as the Purchaser Agents debtor and the Purchasers) contemplated by seller of the Agreement Receivables and to perfect (with a first priority) the interests of Related Assets, the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests secured party and other rights of any Person (other than the Seller purchaser thereof and the Administrative Agent, as agent for the Secured Parties as assignee, and (B) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtorForm UCC-1), together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions form as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.on
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lennox International Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder from an Originator is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the Initial Purchase Date applicable to that Originator, the following, each (unless otherwise indicated) dated the UK Closing Date (or applicable later date of such Purchaseon or prior to the Initial Purchase Date), and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of each Originator approving this Agreement and the other UK Transaction Documents (other than the Ancillary Documents) executed and delivered or to which be executed and delivered by it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents transactions contemplated hereby and thereby, certified by the Secretary of such Originator;
(other than b) a good standing certificate for each Originator issued as of a recent date acceptable to the Ancillary DocumentsBuyer and the Administrative Agent (as the Buyer’s assignee) to which it will be a party and (iii) by Companies House or similar official of the certificate jurisdiction of such Originator’s incorporation and by-laws of each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller.failure to be so qualified would not reasonably be expected to have a Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator or other Persons authorized on such Person’s behalf to sign this Agreement and the other UK Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the requirements of this clause (c));
(d) the certificate of incorporation, any certificate(s) of name change or other constitutional documents of each Originator as of a recent date, together with a copy of the memorandum, the articles of association (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary of such Originator;
(e) favourable opinions of counsel to the Originators in relation to the capacity of the Originators to enter into this Agreement and other UK Transaction Documents to which the Originators are party, in form and substance reasonably satisfactory to the Buyer and the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.;
(f) Acknowledgment copies, or time stamped receipt copies a copy of proper financing statementsa Subordinated Note in favor of each Originator, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated executed by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Buyer;
(g) Acknowledgment copiesa certificate from an officer of each Originator to the effect that the Servicer or such Originator have placed on the most recent, or time stamped receipt copies of proper terminations of financing statements, if any, and have taken all steps reasonably necessary to release all security interests ensure that there shall be placed on each subsequent, data processing report that it generates which are of the type that a proposed purchaser or lender would use to evaluate the Receivables, the following legend (or the substantive equivalent thereof): “THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF 1 AUGUST, 2015, AS AMENDED, BETWEEN EACH OF THE ENTITIES LISTED ON SCHEDULE I THERETO, AS ORIGINATORS, VOLT INFORMATION SCIENCES, INC., AS SERVICER AND VOLT FUNDING CORP., AS BUYER; AND THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN PLEDGED TO PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, PURSUANT TO A RECEIVABLES FINANCING AGREEMENT, DATED AS OF 30 JULY, 2015, AS AMENDED, AMONG VOLT FUNDING CORP., AS BORROWER, VOLT INFORMATION SCIENCES, INC., AS SERVICER, THE VARIOUS LENDERS AND LC PARTICIPANTS FROM TIME TO TIME PARTY THERETO AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND LC BANK”;
(h) evidence (i) of the execution and delivery by each of the parties thereto of each of the other rights UK Transaction Documents to be executed and delivered by it in connection herewith and (ii) that each of any Person (the conditions precedent to the execution, delivery and effectiveness of such other than UK Transaction Documents has been satisfied to the Seller Buyer’s and the Administrative Agent’s (as the Buyer’s assignee) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.satisfaction; and
(hi) Completed UCC search reportssuch other approvals, dated on opinions or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions documents as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent Buyer may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of purchase under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such PurchaseFirst Purchase Date the following, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
Purchaser: (a) A a counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
Sellers Parties; (b) Certified copies favorable opinions of (ix) the resolutions General Counsel or an Assistant General Counsel of the board of directors of Mattel, relating to the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party Parties and (iiiy) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, corporate special counsel for the Originator and the Seller, addressed to the Administrative Agent, each Seller Parties; (c) authorization from Mattel to debit a bank account of Mattel maintained at the Purchaser, in an amount equal to twenty-five thousand dollars ($25,000), which amount constitutes an arrangement fee payable to BA Securities, Inc. (it being understood and agreed that such arrangement fee shall be payable by Mattel if such debit is not made prior to the initial purchase); (d) a certificate of the Assistant Secretary of each Seller Party certifying in each case (i) the names and signatures of its applicable officers that shall execute and deliver the Transaction Documents (on which certificate the Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to may conclusively rely until such other matters time as the Administrative Agent Purchaser shall receive a revised certificate meeting the requirements of this clause), (ii) that attached thereto is a true and correct copy of the certificate or articles of incorporation (certified by the Secretary of State of Delaware or California, as the case may reasonably request.
be) and by-laws of such Seller Party, in each case as in effect on the date of such certification, (kiii) A favorable opinion that attached thereto are true and complete copies of D▇▇▇▇ ▇▇▇▇ & Wexcerpts of resolutions adopted by the Board of Directors of such Seller Party, approving the execution, delivery and performance of this Agreement and all other Transaction Documents to which such Seller Party is a party; and (iv) that attached thereto are good standing certificates (x) issued by the Secretary of State of California with respect to Mattel Sales and (y) issued by the Secretary of State of Delaware with respect to ▇▇▇▇▇▇-▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & Wand Mattel; and (e) UCC-1 financing statements (x) signed by Mattel Sales in form for filing with the Secretary of State of California and (y) signed by ▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T-▇▇▇▇▇▇▇ in form for filing with the Department of State of New York, special Delaware counsel for the Originator it being understood and the Seller, addressed agreed that such financing statements are to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially be filed only in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those circumstances contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs paragraph (c) of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement LetterExhibit VI.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart Certificate of Assignment for the Agent on behalf of the Purchaser, in substantially the form attached hereto as SCHEDULE 5.1(A);
(b) A copy of the resolutions of the Board of Directors of the Transferor approving this Agreement, the Receivables Purchase Agreement, the Certificate of Assignments and the other Agreement Documents to be delivered by it hereunder and the transactions contemplated hereby, certified by its Secretary or Assistant Secretary;
(c) a copy of the resolutions of the Board of Directors of Wackenhut approving this Agreement, the Receivables Purchase Agreement, the Purchase and Sale Agreement and the other Transaction Agreement Documents duly executed to be delivered hereunder and delivered thereunder, certified by the parties thereto.its Secretary or Assistant Secretary;
(bd) Certified copies a copy of (i) the resolutions of each Originator approving the board of directors of the Seller authorizing the execution, delivery, Purchase and performance by the Seller of this Sale Agreement and the other Transaction Agreement Documents to be delivered hereunder and thereunder and as certified by the Secretary or Assistant Secretary of each Originator;
(e) A Good Standing Certificate for the Transferor, Wackenhut and each Originator issued by the Secretary of State or a similar official of the Transferor's, the Servicer's and each Originator's jurisdiction of incorporation and certificates of qualification as a foreign corporation issued by the Secretaries of State or other than similar officials of each jurisdiction when such qualification is material to the Ancillary Documents) to which it will be a partytransactions contemplated by this Agreement, (ii) all documents evidencing other necessary corporate action the Receivables Purchase Agreement, the Purchase and governmental approvals, if any, with respect to this Sale Agreement and the other Transaction Documents (other than the Ancillary Agreement Documents) , in each case, dated a date reasonably prior to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such date;
(cf) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures each of the officers of the Seller authorized to sign this Agreement Transferor, Wackenhut and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on its behalf to sign this Agreement Agreement, the Purchase and Sale Agreement, the Receivables Purchase Agreement, the Certificate of Assignments and the other Transaction Agreement Documents to be delivered by them hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Purchaser and each Bank Investor may conclusively rely until such time as the Agent shall be entitled to rely on receive from the last such Transferor, Wackenhut or the applicable Originator, as applicable, a revised certificate delivered to it meeting the requirements of this SUBSECTION (F));
(g) The Articles of Incorporation of each of the Transferor, Wackenhut and each Originator, duly certified by the Secretary of State or similar official of the jurisdiction of its organization, as of a recent date acceptable to each Agent, together with a copy of the By-laws of each of the Transferor, Wackenhut and each Originator., duly certified by the Secretary or an Assistant Secretary of the Transferor, Wackenhut and such Originator, as applicable;
(fh) Acknowledgment copies, or time stamped receipt copies of proper financing statementsFinancing Statements (Form UCC-1 and in the case of clause (iv) below, duly Form UCC-3), filed on or before prior to the date of such the initial Purchase under the UCC of all jurisdictions that the Administrative Agent and Purchase, naming (i) each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itselfOriginator as debtor/seller, the Purchaser Agents Seller as secured party and the Purchasers) Transferor as assignee and filed in connection with transactions contemplated by the Agreement Purchase and to perfect Sale Agreement, (with a first priorityii) the interests of the Seller as debtor/seller, the Transferor as secured party and the Agent as assignee and filed in connection with transactions contemplated by the Receivables Sale Purchase Agreement., (iii) the Transferor as the debtor/seller of Receivables or an undivided interest therein and the Agent, on behalf of the Purchaser and the Bank Investors, as the secured party/purchaser, and (iv) the Transferor as assignor, and the Agent, on behalf of the Purchaser and the Bank Investors, as assignee, of the security interests evidenced by the financing statement(s) referred to in clause (i) above, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the Agent's interests in all Undivided Interests assigned to it on behalf of the Purchaser or the Bank Investors or otherwise created or arising hereunder;
(gi) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary A search report provided in writing to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted Agent by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial PurchaseLEXIS Document Services, listing all effective financing statements that name the Transferor, the Seller or any Originator as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause SUBSECTION (fH) above and in such other jurisdictions that name the Seller or the Originator as debtorAgent shall reasonably request, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent which shall cover any Receivables or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies interests therein or Collections or proceeds of executed Blocked Account Agreements with the Blocked Account Banks.any thereof);
(j) A favorable opinion Duly executed copies of Lily Y▇▇ ▇▇▇▇▇▇▇Lock-Box Agreements with each of the Lock-Box Banks, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex E and attached hereto as to such other matters as the Administrative Agent may reasonably request.SCHEDULE 5.1(H);
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel associate General Counsel for the Transferor, Wackenhut, each Originator and the SellerServicer, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.SCHEDULE 5.1(I);
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ Akerman, Senterfitt & W▇▇▇▇▇Eids▇▇, counsel for the Seller P.A.,covering certain bankruptcy and the Originator, addressed insolvency matters in form and substance satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.'s counsel;
(m) A favorable opinion of MorrisSuch sublicenses as the Agent shall require with regard to all programs leased by the Transferor, NicholsWackenhut, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the any Originator or Servicer and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially used in the form servicing of Annex H and as to such other matters as the Administrative Agent may reasonably request.Receivables Pool;
(n) Satisfactory results Such powers of a review by attorney as the Purchasers of Agent shall reasonably request to enable the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional collect all amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including due under any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.Pool Receivables;
Appears in 1 contract
Sources: Transfer and Administration Agreement (Wackenhut Corp)
Conditions Precedent to Initial Purchase. The initial making of the Purchase after effectiveness of this Agreement hereunder is subject to the following conditions precedent that precedent:
(a) The Bankruptcy Court shall have entered an order or orders confirming the Administrative Plan of Reorganization, such order or orders shall have not been judicially stayed and such order or orders shall be satisfactory in form and substance to the Program Agent.
(b) The Parent shall not have waived any material condition of the Plan of Reorganization without the consent of the Program Agent and each Purchaser all material changes and deviations in the Plan of Reorganization from the Current Plan shall be satisfactory in form and substance to the Program Agent.
(c) The Plan of Reorganization shall be substantially consummated (or will be substantially consummated with the distributions required to be made with the proceeds of the drawings under the Credit Agreement and the proceeds of the Purchase hereunder).
(d) The Collateral Investors shall have purchased the Collateral Investor Certificates in accordance with the provisions of the Loan Agreement. SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
(e) The Program Agent shall have received on or before the date of such PurchasePurchase Date the following, each dated such date (unless otherwise specified), in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Program Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(bi) Certified copies of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Parent, the executionServicer, deliveryeach other Originator, and performance by the Seller of this Agreement and the other Trustee approving each Transaction Documents (other than the Ancillary Documents) Document to which it will is or is to be a party, (ii) and of all documents evidencing other necessary corporate action and governmental approvalsand other third party approvals and consents, if any, with respect to this Agreement each Transaction Document.
(ii) A copy of (A) the charter of the Parent, the Servicer, each other Originator and the other Transaction Documents Seller and each amendment thereto, certified (other than as of a date reasonably near the Ancillary DocumentsPurchase Date) to which it will be by the Secretary of State of the jurisdiction of its incorporation as being a party true and correct copy thereof and (B) a certified true and correct copy of the charter of the Parent as filed with the Secretary of State of Ohio on the Purchase Date.
(iii) the A copy of a certificate of incorporation the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the Purchase Date, certifying that (A) the Seller has paid all franchise taxes to the date of such certificate and by-(B) the Parent, the Servicer, each other Originator and the Seller are in good standing under the laws of the Sellerjurisdiction of its incorporation.
(civ) A certificate of the Parent, the Servicer, each other Originator and the Seller, signed on behalf of the Parent, the Servicer, each other Originator and the Seller, respectively, by its President or a Vice President, dated the Purchase Date (the statements made in which certificate shall be true on and as of the Purchase Date), certifying as to (A) the absence of any amendments to its charter since the date of the certificate referred to in Section 4.01(e)(ii), (B) a true and correct copy of its bylaws (and all amendments thereto) as in effect on the Purchase Date, (C) its due incorporation and good standing as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for its dissolution or liquidation, (D) the truth of its representations and warranties contained in the Transaction Documents as though made on and as of the Purchase Date and (E) the absence of any event occurring and continuing, or resulting from the Purchase, that constitutes, or with notice or the lapse of time would constitute, an Early Amortization Event or a Termination Event (as defined in the Purchase Agreements). SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
(v) A certificate of the Secretary or an Assistant Secretary (or, in the case of the Trustee, an Assistant Treasurer) of the Parent, the Servicer, each other Originator, the Seller and the Trustee certifying the names and true signatures of the officers of the Parent, the Servicer, each other Originator, the Seller and the Trustee, respectively, authorized to sign this Agreement the Transaction Documents to which such Person is a party and any other documents contemplated hereunder or thereunder, and appropriately evidencing the incumbency of such officers and such Secretary or Assistant Secretary.
(vi) A certificate of the Trustee, signed on its behalf by its President or a Vice President or any Assistant Treasurer, dated the Purchase Date (the statements made in which certificate shall be true on and as of the Purchase Date), certifying as to (A) a true and correct copy of its bylaws (and all amendments thereto) as in effect on the Purchase Date and (B) the due authentication of the Class A Certificates.
(vii) A favorable opinion of Jone▇, ▇▇y, Reav▇▇ & Pogu▇, ▇▇unsel for the Parent, the Servicer, each other Originator and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller Seller, in form and substance satisfactory to the Administrative AgentProgram Agent which shall include, without limitation, (A) an opinion as to the Administrative Agent shall be entitled perfection of the transfers of the Receivables, (B) an opinion as to rely on the last such certificate delivered to it by the Sellerenforceability and (C) a general corporate opinion.
(dviii) Certified copies A favorable opinion of (i) Jone▇, ▇▇y, Reav▇▇ & Pogu▇, ▇▇unsel for the resolutions of Parent, the board of directors (or its designated committee) of the Seller and Servicer authorizing the executionServicer, delivery, and performance by the Seller and Servicer of this Agreement each other Originator and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partySeller, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentProgram Agent which, shall include (A) a "true sale" opinion with respect to the Administrative Agent shall be entitled sales of Receivables from each Originator to rely on the last such certificate delivered Seller or another Originator, as the case may be, and (B) an opinion relating to it by the Originatorlikelihood of a substantive consolidation of any Originator with the Seller.
(fix) Acknowledgment copiesA favorable opinion of Jone▇, or time stamped ▇▇y, Reav▇▇ & Pogu▇, ▇▇unsel for the Parent, the Servicer, each other Originator and the Seller in form and substance acceptable to the Program Agent with regard to tax matters, including Federal, Ohio and New York tax matters and to the effect set forth in the first sentence of Section 3.07 of the Pooling and Servicing Agreement.
(x) A favorable opinion of Sewa▇▇ & ▇iss▇▇, ▇▇unsel for the Trustee, in form and substance satisfactory to the Program Agent.
(xi) A favorable opinion of Shearman & Sterling, counsel for the Program Agent, in form and substance satisfactory to the Program Agent. SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
(xii) Stamped-receipt copies or other evidence of filing of proper financing statementsstatements covering the Receivables, naming the applicable Originator as seller/debtor, the Seller or another Originator, as the case may be, as purchaser/secured party and the Trustee or Seller, as the case may be, as assignee, or other similar instruments or documents, as may be necessary or, in the opinion of the Program Agent, desirable under the UCC of any appropriate jurisdiction or other applicable law to perfect the Seller's first priority interest in the Receivables and the assignment thereof by the Seller to the Trustee.
(xiii) Stamped-receipt copies or other evidence of filing of proper financing statements covering the Receivables and the other Trust Assets, naming the Seller as seller/debtor and the Trustee as purchaser/secured party, or other similar instruments or documents, as may be necessary or, in the opinion of the Program Agent, desirable under the UCC of any appropriate jurisdiction or other applicable law to perfect the Trustee's first priority interest in the Trust Assets.
(xiv) Copies of proper financing statements (Form UCC-3) and other documents to be duly filed on or before about the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statementsDate, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously Receivables granted by the any Originator or the SellerSeller other than to the Trustee or the secured parties under the Collateral Documents (as defined in the Credit Agreement).
(hxv) Completed UCC Certified copies of completed requests for information or a similar search reports, report certified by a party acceptable to the Program Agent dated on or shortly before a date reasonably near the date of such initial PurchasePurchase Date, listing all effective financing statements which name as debtor any Originator or the Seller (under such Originator's or Seller's present name and any previous name) and which are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause (fSections 4.01(e)(xii) above that name the Seller or the Originator as debtor, and 4.01(e)(xiii) together with copies of such financing statements, and similar search reports statements (none of which (except those with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent which releases have been obtained pursuant to Section 4.01(e)(xiv) above) shall cover any property which may be Receivables or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityCollections).
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jxvi) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser Collection Account Letter substantially in the form of Annex Exhibit E to the Pooling and as to Servicing Agreement, in respect of each Collection Account maintained by the Servicer, duly executed by each Person with whom such other matters as the Administrative Agent may reasonably request.Collection Account is maintained. SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
(kxvii) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser An executed subordinated note substantially in the form of Annex F Exhibit A to the Purchase Agreement between the Seller and as The El-Bee Chargit Corp., to such other matters as be delivered by the Administrative Agent may reasonably requestSeller thereto.
(lxviii) The Class A favorable opinion Certificates, delivered in accordance with the provisions of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably requestSection 2.05(b).
(mxix) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator Evidence that all bank accounts required to be established and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably requestmaintained under any Transaction Document shall have been established.
(nxx) Satisfactory results of a review Each Transaction Document duly executed by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreementeach party thereto.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(pxxi) Evidence of payment by the Seller of all accrued and unpaid related fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on in connection with the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement LetterTransaction Documents.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Certificate Purchase Agreement (Elder Beerman Stores Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement is subject to the following conditions condition precedent that the Administrative Agent Administrator and each Purchaser Agent shall have received on or before the date of such Purchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent Administrator and each Purchaser Agent:
(a) A counterpart Counterparts of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of of: (i) the resolutions of the board Board of directors Directors of each of the Seller Seller, the Originators, the Sub-Originators and the Servicer authorizing the execution, delivery, delivery and performance by the Seller Seller, such Originator, such Sub-Originator and the Servicer, as the case may be, of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, ; (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws organizational documents of the Seller, each Originator, each Sub-Originator and the Servicer.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the Originators, the Sub-Originators and the Servicer certifying the names and true signatures of the its officers of the Seller who are authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Administrator and each Purchaser Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to Seller, an Originator, a Sub-Originator or the Administrative AgentServicer, as the case may be, the Administrative Administrator and each Purchaser Agent shall be entitled to rely on the last such certificate delivered to it by the Seller, such Originator, such Sub-Originator or the Servicer, as the case may be.
(d) Certified copies of (i) Proper financing statements to be filed on or promptly after the resolutions of the board of directors (Closing Date or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and bytime-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statementsstatements filed prior to the Closing Date, duly filed on or before the date of such initial Purchase as applicable, under the UCC of all jurisdictions that the Administrative Agent Administrator and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as and the Administrator (on behalf of each Purchaser) contemplated by this Agreement, the Receivables Sale Agreement and the Sub-Originator Sale Agreement.
(ge) Acknowledgment copies, Proper financing statements to be filed on or time promptly after the Closing Date or time-stamped receipt copies of proper terminations of financing statementsstatements filed prior to the Closing Date, if anyas applicable, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator Originators, the Sub-Originators or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fleetcor Technologies Inc)
Conditions Precedent to Initial Purchase. The initial Initial Purchase after effectiveness of this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received completed a due diligence review with results satisfactory to the Purchaser, acting reasonably, of the Credit and Collection Policy and that the Purchaser shall have received, on or before the date of such the Initial Purchase, the following, each (where applicable and unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentPurchaser, acting reasonably:
(1) A certificate of a senior officer of the Seller certifying (a) A counterpart a copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors (and any committee thereof to the extent required by any resolution of the board of directors of the Seller authorizing or the execution, delivery, and performance by Seller’s corporate governance requirements) of the Seller approving the sale, transfer, assignment and conveyance of the Purchaser’s Ownership Interest pursuant to and in accordance with this Agreement and the other Transaction Related Documents (other than the Ancillary Documents) to which it will be is a party, (iib) a copy of relevant extracts of the articles and by-laws or other constating documents, as amended, for the Seller, (c) copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Related Documents (other than the Ancillary Documents) to which it will be the Seller is a party party, and (iiid) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign execute this Agreement and the other Transaction Related Documents (other than the Ancillary Documents) to which it will be is a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d2) Certified copies [Intentionally deleted.]
(3) A certificate of (i) the resolutions status, of the board good standing, of directors (compliance or its designated committee) of the Seller and Servicer authorizing the executiond’attestation, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if anyas applicable, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate Seller, issued by its jurisdiction of incorporation and by-laws and, for the Seller, by each jurisdiction where registrations have been or are to be effected in respect of the Seller and OriginatorPurchaser’s Ownership Interest pursuant to Section , in each case, dated within seven days’ preceding the date of the Initial Purchase.
(e4) A certificate Acknowledgement copies, or time-stamped receipt copies of financing statements or similar filings which have been duly filed on or before the date of the Secretary or Assistant Secretary Initial Purchase under the PPSAs of British Columbia, Alberta and Ontario and a copy of the Originator certifying recording or similar registration instrument to be filed in the names and true signatures Province of Quebec promptly following the officers of Initial Purchase, in each case to perfect, record or protect the Originator authorized to sign this Agreement and Purchaser’s Ownership Interest in the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the OriginatorReceivables Pool.
(f5) Acknowledgment [Intentionally deleted.]
(6) Acknowledgement copies, or time stamped receipt copies of proper all financing statements, duly filed on change statements or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary similar filings or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statementsother appropriate estoppel instruments, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) Adverse Claims in the Pool Receivables, Contracts or Receivables and Related Security Rights previously granted by the Originator or the Seller.
(h7) Completed UCC search reports, dated on or shortly before the date A duly executed copy of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Securitythis Agreement.
(i) Copies 8) A duly executed copy of executed Blocked Account Agreements with the Blocked Account BanksFee Letter.
(j9) [Intentionally deleted.]
(10) Duly executed copies of all other Related Documents to which the Purchaser and/or the Seller is a party at such time.
(11) A favorable opinion duly executed copy of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and Quebec Assignment.
(12) A duly executed copy of the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially Liquidity Agreement.
(13) A report in the form of Annex E a Servicer Report (generated on a pro forma basis) in respect of the Month ending on the Cut-Off Date which confirms that, on the Cut-Off Date, the Eligible Receivables Pool Balance would have equalled or exceeded the Minimum Eligible Pool Balance.
(14) Sample pages from the Accounts Receivable Register for the Alberta CORE Billing System, the BC CORE Billing System, Enabler Billing System and Knowbility Billing System demonstrating, to the satisfaction of the Purchaser, that the processes which are to be completed in order to produce a copy of the Accounts Receivable Register for such Billing Systems as described in Schedule D, effectively enable the identification of the Pool Receivables in the Receivable Pool billed through such Billing Systems.
(15) Favourable opinions of counsel for the Seller as to such other matters as the Administrative Agent Purchaser may reasonably request.
(k16) A favorable opinion favourable confirmation of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for rating letter from DBRS confirming the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers credit ratings of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this AgreementNotes.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Buyer and the Administrator (as the Buyer’s and the SPV’s assignee) and each Purchaser Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent Buyer and the Administrator and each Purchaser Agent:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers of each Seller approving the Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Seller;
(b) Good standing certificates for each Seller issued as of a recent date acceptable to the Buyer and the Administrator (as the Buyer’s assignee) by the Secretary of State of the jurisdiction of such Seller’s organization and each jurisdiction where such Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) is qualified to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transact business;
(c) A certificate of the Secretary or Assistant Secretary of the each Seller certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentServicer, the Administrative Buyer, the Administrator and each Purchaser Agent may conclusively rely until such time as the Servicer, the Buyer, the Administrator and each Purchaser Agent shall be entitled to rely on receive from such Person a revised certificate meeting the last such certificate delivered to it by the Seller.requirements of this clause (c));
(d) Certified copies The certificate or articles of (i) incorporation or other organizational document of each Seller duly certified by the resolutions Secretary of State of the board jurisdiction of directors (or its designated committee) such Seller’s organization as of a recent date, together with a copy of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of such Seller, each duly certified by the Seller and Originator.Secretary or an Assistant Secretary of such Seller;
(e) A certificate of Proper financing statements to be filed on or promptly after the Secretary Closing Date or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time time-stamped receipt copies of proper financing statementsstatements filed prior to the Closing Date, duly filed on as applicable, name each Seller as the debtor/seller, the Buyer as the buyer/assignor, the SPV as a subsequent buyer/assignor and the Administrator as ultimate secured party/assignee of the Receivables generated by such Seller as may be necessary or, in the Buyer’s or before the date of such initial Purchase Administrator’s opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Buyer’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (with including, without limitation, Related Security) in which an ownership or security interest has been assigned to it hereunder;
(f) A written search report from a first priority) Person satisfactory to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Buyer and the Purchasers) contemplated by Administrator listing all effective financing statements that name the Agreement Sellers as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to perfect (the applicable UCC, together with copies of such financing statements, and tax and judgment lien search reports from a first priority) Person satisfactory to the interests Buyer showing no evidence of the Seller as contemplated by the Receivables Sale Agreement.such liens filed against any Seller;
(g) Acknowledgment copies, Proper financing statements to be filed on or time promptly after the Closing Date or time-stamped receipt copies of proper terminations of financing statementsstatements filed prior to the Closing Date, if anyas applicable, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security Transferred Assets previously granted by the Originator or the any Seller.;
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇King & Spalding LLP, corporate counsel for to the Originator Sellers, in form and substance satisfactory to the Buyer, the Administrator and each Purchaser Agent;
(i) A Demand Note in favor of each Seller, addressed duly executed by the Buyer; and
(j) Evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the OriginatorAdministrator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreementsatisfaction.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Fleetcor Technologies Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions 8 contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the requirements of this clause (c));
(d) the certificate of formation or other organizational document of each Originator in form (including all amendments and substance satisfactory to modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the limited liability company agreement or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Lenders, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copiesAgent’s reasonable opinion, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(with f) a first priority) written search report from a Person reasonably satisfactory to the interests of Buyer and the Administrative Agent (on behalf of itself, as the Purchaser Agents and the PurchasersBuyer’s assignee) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions as PBGC) from a Person satisfactory to the Buyer and the Administrative Agent or any Purchaser Agent may request, (as the Buyer’s assignee) showing no evidence of such liens on filed against any Originator;
(g) favorable opinions of counsel to the Pool AssetsOriginators, Pool Receivablesin form and substance reasonably satisfactory to the Buyer and the Administrative Agent;
(h) a copy of a Subordinated Note in favor of each Originator, Contracts or Related Security.duly executed by the Buyer; and
(i) Copies evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed Blocked Account Agreements with and delivered by it in connection herewith and (ii) that each of the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementBuyer’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) and each Purchaser AgentPurchaser:
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Purchaser may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s security interest in such Receivables and the Related Rights in which a security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Seller Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Purchaser;
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens a copy of the Pension Benefit Guaranty Corporation in Intercompany Loan Agreement entered into by each Originator and the Buyer, duly executed by such jurisdictions as Originator and the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Buyer; and
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers evidence of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit reportother Transaction Documents to be executed and delivered by it in connection herewith.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ashland Global Holdings Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and each Purchaser Agent the Administrator (as the Company’s assignee) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser Agent:the Administrator (as the Company’s assignee):
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates for each Originator issued as of a recent date reasonably acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State of the Seller authorizing the execution, delivery, jurisdiction of such Originator’s organization and performance by the Seller each jurisdiction where such Originator conducts a material portion of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.its business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator (as the Company’s assignee) may conclusively rely until such time as the Servicer, the Company and the Administrator (as the Company’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation, certificate of formation or other organizational document of each Originator duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or limited liability company agreement of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Forms of financing statements (Form UCC-1) that name each Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the buyer/assignor (other than and the Ancillary DocumentsAdministrator, for the benefit of the Purchasers, as secured party/assignee) to which it will of the Receivables sold by such Originator as may be a party. Until necessary or, in the Administrative Agent receives a subsequent incumbency certificate from Company’s or the Originator in form and substance satisfactory to the Administrative AgentAdministrator’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership interest in all Receivables and Related Rights (with a first priorityincluding, without limitation, Related Security) in which an ownership or security interest has been assigned to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.Company hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC Written search reports, dated on or shortly before the date of such initial Purchase, results listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or the Originator as debtorsellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or prior to the Closing Date), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and similar tax and judgment lien search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, results showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jg) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇ & ▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇LLP, counsel for to the Originators, in form and substance reasonably satisfactory to the Company and the Administrator (as the Company’s assignee);
(h) A Company Note in favor of each Originator, duly executed by the Company;
(i) Evidence of the execution and delivery by each Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form Company of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect other Transaction Documents to the transactions contemplated by this Agreement.
(u) Receipt be executed and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released delivered in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.connection herewith; and
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Buyer shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentBuyer:
(a) A counterpart An Originator Assignment Certificate in the form of this Agreement and the other Transaction Documents Exhibit C from each Originator, duly completed, executed and delivered by the parties thereto.each such Originator;
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors or members or managers, as the case may be, of each Originator approving the Seller authorizing Transaction Documents to be delivered by it and the executiontransactions contemplated hereby and thereby, delivery, and performance certified by the Seller Secretary or Assistant Secretary of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.each such Originator;
(c) Good standing certificates for each Originator issued as of a recent date acceptable to the Servicer by the Secretary of State (or similar official) of the jurisdiction of each such Originator’s organization and the jurisdiction where each such Originator’s chief executive office is located;
(d) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be delivered by it (on which certificate the Servicer and the Buyer may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this subsection (d));
(e) The certificate of incorporation or certificate of formation or other organizational document of each Originator (including all amendments and modifications thereto), duly certified by the Secretary of State of the Originator authorized jurisdiction of such Originator’s incorporation or organization as of a recent date acceptable to sign this Agreement the Administrator and the by-laws or limited liability company agreement (including all amendments and modifications thereto), as applicable, of such Originator, in each case duly certified by the Secretary or an Assistant Secretary of such Originator;
(i) Proper financing statements (Form UCC-1) naming each Originator as the debtor/seller and the Buyer as the secured party/purchaser, and (ii) the proper financing statement amendments (Form UCC-3) which name the Administrator as the assignee of the Buyer, as may be necessary or, in the Servicer’s or the Administrator’s opinion, desirable, under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership interest in all Receivables and such other Transaction Documents rights, accounts, instruments and moneys (other than including, without limitation, the Ancillary DocumentsRelated Rights) in which an ownership or security interest may be assigned to which it will be hereunder;
(g) A written search report from a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance Person satisfactory to the Administrative AgentAdministrator listing all effective financing statements that name each Originator as debtor or seller and that are filed in all jurisdictions in which filings could be effectively made, together with copies of such financing statements (none of which, except for those (i) described in the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
foregoing subsection (f) Acknowledgment copies), or time stamped receipt copies of (ii) as to which proper financing statementsstatements (Form UCC-3), duly filed on or before the date of such initial Purchase executed and suitable for filing under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent Administrator may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts Receivables or Related Security previously Rights granted by such Originator to such Person have been received by the Originator Administrator, shall cover any Receivable or any Related Rights which are to be sold or contributed to the Seller.Buyer hereunder), and tax and judgment lien search reports (including, without limitation, ERISA lien searches) from a Person satisfactory to the Administrator showing no evidence of any such liens filed against such Originator;
(h) Completed UCC search reports, dated on or shortly before the date Favorable opinions of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, Sidley Austin LLP and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate Calland, Clements, Zomnir PC, counsel for the Originator and the Seller, addressed to the Administrative AgentOriginators, each Purchaser, each Purchaser Agent in form and each Alternate Purchaser substantially in substance satisfactory to the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.Administrator;
(ki) A favorable opinion Company Note in favor of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇each Originator, counsel for duly executed by the Buyer; and
(j) A certificate from a Responsible Officer of each Originator and the Seller, addressed to the Administrative Agenteffect that the Servicer and such Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each Purchasersubsequent, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers data processing report that it generates which are of the Seller’s and type that a proposed purchaser or lender would use to evaluate the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4Receivables, the Fee Letter and following legend (or the Engagement Lettersubstantive equivalent thereof): “THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO STRATEGIC RECEIVABLES, LLC PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF OCTOBER 3, 2007, AS AMENDED, AMONG THE ORIGINATORS (AS DEFINED THEREIN) AND STRATEGIC RECEIVABLES, LLC; AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO CERTAIN PURCHASERS PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF OCTOBER 3, 2007, AS AMENDED, AMONG STRATEGIC ENERGY, L.L.C., AS THE SERVICER, STRATEGIC RECEIVABLES, LLC, AS THE SELLER, THE CONDUIT PURCHASERS PARTY THERETO, THE PURCHASER AGENTS PARTY THERETO, THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES THERETO, AS LC PARTICIPANTS AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR AND AS LC BANK.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Kansas City Power & Light Co)
Conditions Precedent to Initial Purchase. The initial ---------------------------------------- Purchase after effectiveness of this Agreement hereunder is subject to the following conditions precedent that the Administrative Agent conditions precedent to the initial "Purchase" under the ▇▇▇▇▇▇ Agreement shall have been satisfied on or prior to the date of such Purchase and each Purchaser that the Agent shall have received on or before the date of such PurchasePurchase the following, each (unless otherwise indicated) dated the date of the initial "Purchase" under the ▇▇▇▇▇▇ Agreement, in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.The Ownership Document;
(b) Certified copies A copy of (i) the resolutions adopted by the Board of the board of directors Managers of the Seller authorizing approving this Agreement, the execution, delivery, and performance by the Seller of this Agreement Ownership Document and the other Transaction Documents (other than the Ancillary Documents) documents to which be delivered by it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement hereunder and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transactions contemplated hereby, certified by its Secretary or Assistant Secretary;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement Agreement, the Ownership Document and the other Transaction Documents documents to be delivered by it hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until Agent and each Owner may conclusively rely until such time as the Administrative Agent receives a subsequent incumbency certificate shall receive from the Seller in form and substance satisfactory to a revised certificate meeting the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.requirements of this subsection (c));
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt Acknowledgement copies of proper financing statementsFinancing Statements (Form UCC-_), duly filed on or before dated a date reasonably near to the date of such the initial Purchase Purchase, naming the Seller as the assignor of Receivables and CNA, as Agent, as assignee, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law to perfect (with a first priority) the ownership interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the in all Receivables Sale Agreement.in which an interest may be assigned hereunder;
(ge) Acknowledgment copies, or time stamped receipt Acknowledgement copies of proper terminations of financing statementsFinancing Statements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security Receivables previously granted by the Originator or the Seller.;
(hf) Completed UCC Certified copies of Requests for Information or Copies (Form UCC-11) (or a similar search reportsreport certified by a party acceptable to the Agent), dated on or shortly before a date reasonably near to the date of such the initial Purchase, listing all effective financing statements which name the Seller (under its present name and any previous name used by it within the last five years) as debtor and which are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above that name the Seller or the Originator as debtorabove, together with copies of such financing statements, and similar search reports with respect statements (none of which (except those filed pursuant to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent subsection (d) above) shall cover any Receivables or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Contracts);
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jg) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator Seller, --------------- the SPVs, the Originators, Services and the SellerParent, addressed in form and substance satisfactory to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.; and
(kh) A favorable opinion of D▇'▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Group Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) and each Purchaser Group Agent:
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Group Agent may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Group Agent shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Seller Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable Group Agent;
(h) a copy of a Subordinated Note in order to perfect favor of each Originator, duly executed by the Buyer; and
(with a first priorityi) the interests evidence (i) of the Administrative Agent (on behalf of itself, the Purchaser Agents execution and the Purchasers) contemplated delivery by the Agreement and to perfect (with a first priority) the interests each of the Seller as contemplated parties thereto of each of the other Transaction Documents to be executed and delivered by it in connection herewith and (ii) that each of the Receivables Sale Agreement.
(g) Acknowledgment copiesconditions precedent to the execution, or time stamped receipt copies delivery and effectiveness of proper terminations of financing statements, if any, necessary such other Transaction Documents has been satisfied to release all security interests and other rights of any Person (other than the Seller Buyer’s and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
’s (h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityBuyer’s assignee) satisfaction.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Computer Sciences Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase from or contribution by any Originator hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and each Purchaser Agent the Administrator (as the Company’s assignee) shall have received received, on or before the date of Closing Date for such PurchaseOriginator, the following, each (unless otherwise indicated) dated the Closing Date for such Originator, and each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser Agent:the Administrator (as the Company’s assignee):
(a) A counterpart copy of this Agreement and the other resolutions of the appropriate governing body of such Originator approving the Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies A good standing certificate for such Originator issued as of a recent date reasonably acceptable to the Company and the Administrator (ias the Company’s assignee) by the resolutions Secretary of State of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator’s organization;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator (as the Company’s assignee) may conclusively rely until such time as the Servicer, the Company and the Administrator (as the Company’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation, certificate of formation or other organizational document of such Originator duly certified by the Secretary of State of the Originator authorized to sign this Agreement and jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement or other Transaction Documents applicable operating agreement of such Originator, each certified by the Secretary or an Assistant Secretary of such Originator;
(other than the Ancillary Documentse) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator Financing statements (Form UCC-1), in form and substance satisfactory suitable for filing, each to be sent for filing by the Administrator under the UCC of the jurisdiction in which the debtor named therein is “located” (within the meaning of the UCC) in order to (i) perfect the interests of the Company contemplated by this Agreement and (ii) assign, of record, such interests to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.Administrator;
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before Completed UCC search reports from the date of jurisdiction in which such initial Purchase under Originator is “located” (within the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests meaning of the Administrative Agent UCC), dated within 10 Business Days prior to the Closing Date, listing all financing statements filed with the secretary of state in such jurisdiction, that name such Originator as debtor showing no Adverse Claims on any Pool Assets (on behalf other than those with respect to which the Administrator is in receipt of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests satisfactory evidence of the Seller as contemplated by the Receivables Sale Agreement.release thereof);
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP, counsel for to such Originator, in form, substance and scope reasonably satisfactory to the Originator Company and the SellerAdministrator (as the Company’s assignee);
(h) A Company Note in favor of such Originator, addressed duly executed by the Company; and
(i) Evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerCompany’s and the OriginatorAdministrator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementCompany’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedreasonable satisfaction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Targa Resources Partners LP)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) reasonably satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(as the Buyer’s assignee):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate from meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation, certificate of formation or other organizational document of each Originator in form (including all amendments and substance satisfactory to modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) forms of financing statements (Form UCC-1) that name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Lenders, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copiesAgent’s reasonable opinion, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Buyer’s ownership or security interest in such Receivables and the Purchasers) contemplated by the Agreement and Related Rights in which an ownership or security interest has been assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC a written search reports, dated on or shortly before the date of such initial Purchase, report listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation PBGC) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in such jurisdictions as form and substance reasonably satisfactory to the Buyer, the Administrative Agent or any Purchaser Agent may requestAgent;
(h) a Subordinated Note in favor of each Originator, showing no such liens on any of duly executed by the Pool Assets, Pool Receivables, Contracts or Related Security.Buyer;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.[reserved]; and
(j) A favorable opinion evidence (i) of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator execution and delivery by each of the Seller, addressed parties thereto of each of the other Transaction Documents to be executed and delivered by it in connection herewith and (ii) that each of the conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementBuyer’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form form, substance and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) 1. A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of each Originator approving the Transaction Documents to be delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
1. Good standing certificates for each Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the Seller authorizing the execution, delivery, and performance by the Seller jurisdiction of this Agreement such Originator's incorporation and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.jurisdiction where such Originator's chief executive office is located;
(c) 1. A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than an Originator) may conclusively rely until such time as the Company and the Servicer shall receive from such Originator a revised certificate meeting the requirements of this subsection (c));
1. The articles of incorporation of each Originator, duly certified by the Secretary of State of the jurisdiction of such Originator's incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator;
1. Copies of the proper financing statements (Form UCC-1) that have been duly executed and name each Originator authorized to sign this Agreement as the seller/debtor and the other Transaction Documents Company as the purchaser/secured party (other than and Issuer as assignee of the Ancillary DocumentsCompany) to which it will of the Receivables generated by such Originator and Related Rights or other, similar instruments or documents, as may be a party. Until necessary or, in Servicer's or the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentAdministrator's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law of all appropriate jurisdictions to perfect (with the Company's ownership interest in all Receivables and Related Rights in which an ownership interest may be assigned to it hereunder;
1. A written search report from a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Person satisfactory to Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Administrator listing all effective financing statements that name any Originator as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e), shall cover any Receivable or any Related Right), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Administrator showing no evidence of such liens on filed against any Originator;
1. Favorable opinions of counsel to the Pool AssetsOriginators, Pool Receivables, Contracts or Related Security.in the forms of Exhibit C;
1. Evidence
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming of the rating other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of its Notes after giving effect the conditions precedent to the transactions contemplated execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction; and
1. A certificate from an officer of each Originator to the effect that Servicer and Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO IMO FUNDING COMPANY, LLC, PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF NOVEMBER 29, 1999, AMONG IMO INDUSTRIES INC., THE ORIGINATORS NAMED THEREIN AND IMO FUNDING COMPANY, LLC; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO LIBERTY STREET FUNDING CORP., PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF NOVEMBER 29, 1999, AMONG IMO INDUSTRIES INC., IMO FUNDING COMPANY, LLC, LIBERTY STREET FUNDING CORP., AND THE BANK OF NOVA SCOTIA, AS ADMINISTRATOR."
A. Certification as to Representations and Warranties. Each Originator, by this Agreement.
accepting the Purchase Price related to each purchase of Receivables (uand Related Rights) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence generated by such Originator, shall be deemed to have certified that the “Liens” created (representations and warranties contained in Article V are true and correct on and as defined) under of such day, with the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (same effect as defined in the GE Receivables Funding Agreement) have been paid in full though made on and all obligations as of the Seller and the Servicer thereunder have been terminatedsuch day.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial purchase under the Original Purchase after effectiveness of this and Sale Agreement is was subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseOriginal Closing Date, the following, each (unless otherwise indicated) dated the Original Closing Date, and each in form form, substance and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Originator approving the execution, delivery, and performance Transaction Documents to be delivered by the Seller of this Agreement it and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby and thereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of certified by the Secretary or Assistant Secretary of the Seller certifying Originator;
(b) A Certificate of Existence for the names and true signatures Originator issued as of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it recent date by the Seller.Indiana Secretary of State;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(ec) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on the Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and the Servicer (if other than the Originator) may conclusively rely until such time as the Company and the Servicer shall receive from the Originator a revised certificate meeting the requirements of this SUBSECTION (c));
(d) The articles of incorporation of the Originator authorized to sign this Agreement together with a copy of the by-laws of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed and name the Originator as the assignor and the other Transaction Documents Company as the assignee (other than and Purchaser as assignee of the Ancillary DocumentsCompany) to which it will be a party. Until of the Administrative Agent receives a subsequent incumbency certificate from Receivables generated by the Originator and Related Rights or other, similar instruments or documents, as may be necessary or, in form and substance satisfactory to Servicer's or the Administrative Agent's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which an ownership interest may be transferred to it hereunder;
(with f) A written search report from a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Person satisfactory to Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Agent listing all effective financing statements that name the Originator as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing SUBSECTION (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing SUBSECTION (e), shall cover any Receivable or any Related Right), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no evidence of such liens on any of filed against the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(ig) Copies Favorable opinions of executed Blocked Account Agreements with ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., general counsel to the Blocked Account Banks.
(j) A favorable opinion of Lily YOriginator and Ice ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇, corporate special counsel for the Originator and the Seller, addressed to the Administrative AgentOriginator, each Purchaserconcerning enforceability of this Agreement and certain other matters, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of DIce ▇▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇ and ▇▇▇▇, counsel for the Originator concerning certain bankruptcy matters, and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters opinions as the Administrative Agent Company may reasonably request.;
(lh) Evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction; and
(i) A favorable opinion certificate from an officer of Dthe Originator to the effect that Servicer and the Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AFC FUNDING CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 31, 1996, BETWEEN AUTOMOTIVE FINANCE CORPORATION AND AFC FUNDING CORPORATION; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF DECEMBER 31, 1996, AMONG AFC FUNDING CORPORATION, AS SELLER, AUTOMOTIVE FINANCE CORPORATION, AS SERVICER, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, AS PURCHASER AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ & W▇▇▇▇▇▇▇SECURITIES INC., counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably requestAS AGENT.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated."
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Borrower (as ▇▇▇▇▇’s assignee) and the Administrative Agent and each Purchaser Agent (as ▇▇▇▇▇▇▇▇’s assignee for the benefit of the Secured Parties under the ABL Credit Agreement) shall have received on or before the date of such Purchasefollowing, each (unless otherwise indicated) dated the Purchase Agreement Effective Date, and each in form and substance (including the date thereof) satisfactory to the Buyer, the Borrower and the Administrative Agent and each Purchaser Agent:(the date on which all such items have been received, the “Purchase Agreement Effective Date”):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Loan Documents duly to be executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement it and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby and thereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of certified by the Secretary or Assistant Secretary of such Originator;
(b) good standing certificates for each Originator issued as of a recent date reasonably acceptable to the Seller Buyer and the Administrative Agent by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the failure to be so qualified would not reasonably be expected to have an Originator Material Adverse Effect;
(c) a certificate of each Originator Responsible Officer certifying the names and true signatures of the officers of the Seller authorized on such Originator’s behalf to sign this Agreement and the other Transaction Loan Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives and each Lender may conclusively rely until such time as the Servicer, the Buyer and the Administrative Agent shall receive from such Person a subsequent incumbency revised certificate from meeting the Seller in form requirements of this clause (c));
(d) the certificate of formation, articles of incorporation or articles of organization of each Originator (including all amendments and substance satisfactory to modifications thereto), as applicable, duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor secured party (and the Borrower, as additional assignee/secured party and the Administrative Agent, for the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions benefit of the board of directors (or its designated committeeSecured Parties, as total assignee / secured party) of the Seller and Servicer authorizing Subject Receivables sold by such Originator as may be necessary or, in the executionBuyer’s, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary ▇▇▇▇▇▇▇▇’s or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that to perfect the Buyer’s ownership or security interest in such Subject Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person reasonably satisfactory to the Buyer, the Borrower and the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Originator pursuant to the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those released or terminated, as the case may be, prior to the date hereof), shall cover any Subject Receivable or any Related Rights which are to be sold to the Buyer hereunder, and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions as PBGC) from a Person reasonably satisfactory US-DOCS\148030570.24 to the Buyer, the Borrower and the Administrative Agent or any Purchaser Agent may request, showing no evidence of such liens on filed against any Originator;
(g) an updated Schedule V hereto;
(h) evidence (i) of the Pool Assetsexecution and delivery by each of the parties thereto of each of the Loan Documents to be executed and delivered by it in connection herewith and (ii) that each of the conditions precedent to the execution, Pool Receivables, Contracts or Related Security.delivery and effectiveness of such Loan Documents has been satisfied to the Buyer’s and the Administrative Agent’s satisfaction;
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.Company shall have received the PUC Initial Order; and
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator Company and the Seller, addressed to Buyer shall have agreed that the Administrative Agent, each Purchaser, each Purchaser Agent Purchase Agreement Effective Date has occurred and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as notified the Administrative Agent thereof in writing (which may reasonably requestbe by email).
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Hawaiian Electric Co Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form form, substance and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of the Seller authorizing Originator approving the execution, delivery, and performance Transaction Documents to be delivered by the Seller of this Agreement it and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby and thereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of certified by the Secretary or Assistant Secretary of the Seller certifying Originator;
(b) A Certificate of Existence for the names and true signatures Originator issued as of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it recent date by the Seller.Indiana Secretary of State;
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(ec) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers authorized on the Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than the Originator) may conclusively rely until such time as the Company and the Servicer shall receive from the Originator a revised certificate meeting the requirements of this SUBSECTION (c));
(d) The articles of incorporation of the Originator authorized to sign this Agreement together with a copy of the by-laws of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed and name the Originator as the assignor and the other Transaction Documents Company as the assignee (other than and the Ancillary DocumentsLender as assignee of the Company) to which it will be a party. Until of the Administrative Agent receives a subsequent incumbency certificate from Receivables generated by the Originator and Related Rights or other, similar instruments or documents, as may be necessary or, in form and substance satisfactory to Servicer's or the Administrative AgentLender's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which an ownership interest may be transferred to it hereunder;
(with f) A written search report from a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Person satisfactory to Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Lender listing all effective financing statements that name the Originator as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing SUBSECTION (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing SUBSECTION (e), shall cover any Receivable or any Related Right), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Lender showing no evidence of such liens on any of filed against the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(ig) Copies Favorable opinions of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇▇▇ ▇▇▇▇▇▇▇, corporate Esq., general counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & TIce ▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative AgentOriginator, each Purchaserconcerning enforceability of this Agreement and certain other matters, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H Ice ▇▇▇▇▇▇, concerning certain bankruptcy matters, and as to such other matters opinions as the Administrative Agent Company may reasonably request.;
(nh) Satisfactory results of a review by the Purchasers Evidence (i) of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming of the rating other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of its Notes after giving effect the conditions precedent to the transactions contemplated by this Agreement.execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction; and
(ui) Receipt and satisfactory review A certificate from an officer of the final Protiviti audit report.
(v) Evidence Originator to the effect that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller Servicer and the Servicer thereunder Originator have been terminatedplaced on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AFC AIM CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 22, 2000, BETWEEN AUTOMOTIVE FINANCE CORPORATION AND AFC AIM CORPORATION; AND A SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO BANK OF MONTREAL, PURSUANT TO A LOAN AND SERVICING AGREEMENT, DATED AS OF DECEMBER 22, 2000, AMONG AFC AIM CORPORATION, AS BORROWER, AUTOMOTIVE FINANCE CORPORATION, AS SERVICER, AND BANK OF MONTREAL, AS LENDER.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Allete)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Buyer shall have received on or before the date of such PurchasePurchase the following, each (unless otherwise indicated) dated such date, in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentBuyer:
(a) A counterpart a copy of the resolutions of the Board of Directors of the Seller approving this Agreement and the other Transaction Operative Documents duly executed and to be delivered by it hereunder and the parties thereto.transactions contemplated hereby, certified by its Secretary or Assistant Secretary;
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying (i) the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents documents to be delivered by it hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until Buyer may conclusively rely until such time as the Administrative Agent receives a subsequent incumbency certificate Buyer shall receive from the Seller in form and substance satisfactory to a revised certificate meeting the Administrative Agentrequirements of this subsection (b)), the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(dii) Certified copies of (i) the resolutions a copy of the board Certificate of directors (or its designated committee) Incorporation of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) a copy of the certificate of incorporation and Seller's by-laws laws;
(c) duly executed Financing Statements (Form UCC-1), in proper form for filing, naming Medallion Financial as the debtor/seller/assignor of the Financial Medallion Loans and Related Assets and the Seller as secured party/purchaser/assignor and Originator.
(e) A certificate the Buyer as assignee or other documents, as may be necessary or, in the opinion of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itselfMedallion Funding's, and therefore, the Purchaser Agents and Buyer's, interests in the PurchasersFinancial Medallion Loans;
(d) contemplated by the Agreement and to perfect duly executed Financing Statements (with a first priority) the interests of Form UCC-1), in proper form for filing, naming the Seller as contemplated by the Receivables Sale Agreement.debtor/seller of the Medallion Loans and Related Assets and the Buyer as secured party/purchaser/assignor and the Custodian as assignee thereof, or other documents, as may be necessary or, in the opinion of the Buyer, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the Buyer's, interests in the Medallion Loans and Related Assets;
(ge) Acknowledgment copies, or time receipt-stamped receipt copies of proper terminations of financing statementsFinancing Statements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Medallion Loans and Related Security Assets previously granted by the Originator Seller or the Seller.Medallion Financial;
(hf) Completed UCC certified copies of requests for information or copies (Form UCC-11) (or a similar search reportsreport certified by a party acceptable to the Buyer), dated on or shortly before a date reasonably near to the date of such the initial Purchase, listing all effective financing statements which name the Medallion Financial or the Seller (under its present name and any previous name) as debtor and which are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fd) above that name the Seller or the Originator as debtorabove, together with copies of such financing statementsstatements (none of which shall cover any Medallion Loans, related Loan Documents and/or Related Assets, except (x) those filed pursuant to this Agreement, the Loan Sale and Exchange Agreement or the Loan and Security Agreement, (y) those as to which Forms UCC-3 have been filed as provided in clause (e) above, and similar search reports with respect to judgment liens, federal tax liens and liens of (z) as otherwise agreed by the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Buyer);
(ig) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable an opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇, counsel for the Originator and to the Seller, addressed Buyer and Medallion Financial, regarding the characterization of the Financial Medallion Loans sold by Medallion Financial to Medallion Funding pursuant to the Administrative AgentLoan Sale and Exchange Agreement and the Medallion Loans sold by Medallion Funding to the Trust pursuant to the Medallion Loan Sale and Contribution Agreement as true sales or contributions of, each Purchaserand not loans secured by, each Purchaser Agent the Financial Medallion Loans and each Alternate Purchaser substantially in the form of Annex F Medallion Loans, as applicable, and as to such other matters as the Administrative Agent may reasonably request.substantive nonconsolidation of the Seller and Medallion Financial with the Buyer in a bankruptcy of the Seller and/or the Buyer; and
(lh) A favorable an opinion of D▇▇▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative AgentSeller, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to perfection, priority, certain corporate matters and such other matters as the Administrative Agent Buyer may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Loan Sale and Contribution Agreement (Medallion Financial Corp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent shall have received received, on or before the date of such Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart Certificate of Assignments;
(b) A copy of the resolutions of the Board of Directors of Seller approving this Agreement, the Certificate of Assignments and the other Agreement Documents to be delivered by it hereunder and the transactions contemplated hereby, certified on behalf of Seller by Seller's Secretary or Assistant Secretary; a copy of the resolutions of the Board of Directors of Guarantor approving this Agreement and the other Transaction Agreement Documents duly executed and to be delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement it hereunder and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate certified on behalf of incorporation and by-laws of the Seller.Guarantor by Guarantor's Secretary or Assistant Secretary;
(c) Good standing or foreign qualification certificates for Seller issued by the Secretaries of State of Alabama, California, Colorado, New Hampshire, North Carolina, Maine and South Dakota; and good standing or foreign qualification certificates for Guarantor issued by the Secretaries of State of Delaware and California;
(d) A certificate of the Secretary or Assistant Secretary of the each of Seller and Guarantor certifying on behalf of such Person the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Agreement Documents to be delivered by it hereunder (other than the Ancillary Documents) to on which it will be a party. Until certificate the Administrative Agent receives and Purchaser may conclusively rely until such time as the Administrative Agent shall receive a subsequent incumbency revised certificate from meeting the requirements of this subsection (d));
(e) The Articles of Incorporation of Seller and the Certificate of Incorporation of Guarantor, duly certified by the Secretary of State or similar office of the State under the laws of which the Seller in form or Guarantor, as the case may be, was organized, as of a recent date, together with a copy of the By-laws of Seller and substance Guarantor, duly certified on behalf of such Person by the Secretary or an Assistant Secretary of Seller and Guarantor, respectively;
(f) Acknowledgment copies (or other evidence of filing reasonably satisfactory to the Administrative Agent), of proper Financing Statements (Form UCC-1), filed on or prior to the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions date of the board initial Purchase naming Seller as the debtor and seller of directors (Receivables or its designated committee) of an undivided interest therein and Purchaser as the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a secured party and (iii) purchaser, or other, similar instruments or documents, as may be necessary or, in the certificate reasonable opinion of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC or any comparable law of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the Purchaser's interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and in all Undivided Interests assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it or otherwise created or arising hereunder;
(g) Acknowledgment copiesA search report provided in writing to the Administrative Agent listing all effective Financing Statements filed in the jurisdictions in which filings were made pursuant to subsection (f) above and in such other jurisdictions that Administrative Agent shall reasonably request, or time stamped receipt together with copies of proper terminations such financing statements (none of financing statementswhich shall cover the Pool or any part thereof);
(h) executed copies of all releases, if any, necessary to release all security interests and other rights or interests of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security any part thereof previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtorany Person, together with copies of such the relevant financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.statements (Form UCC-3);
(i) Copies Duly executed copies of executed Blocked Account Lock-Box Agreements with each of the Blocked Account Lock-Box Banks.;
(j) A favorable opinion of Lily Y▇▇ Powell, Goldstein, ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator Seller and the SellerGuarantor, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex F Exhibit 5.01(j)-1, and as to such other matters as a favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., in-house counsel for Seller and Guarantor, in substantially the Administrative Agent may reasonably request.form of Exhibit 5.01(j)-2;
(lk) A favorable opinion of D▇▇▇▇ ▇▇, ▇▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters Exhibit 5.01(k);
(l) Such powers of attorney as the Administrative Agent may shall reasonably request.request to enable the Administrative Agent to collect all amounts due under any and all Pool Receivables;
(m) A favorable opinion Periodic Report as of Morris, Nichols, Arsht the most recent Month End Date; and
(n) A report from Coopers & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed ▇ or other independent certified public accountants or other auditors acceptable to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries application of the States of Delaware certain procedures to Seller's books and California.
(r) Good standing certificates with respect records relating to the Originator issued by the Secretaries of the States of Delaware and CaliforniaPool Receivables.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and the Administrator (as the Company’s assignee and each Purchaser Agent Agent) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent Company, the Administrator and each Purchaser Agent:):
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers or authorized committee thereof of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates (or applicable certificate or statement of like effect in any applicable jurisdiction howsoever named) for each Originator issued as of a recent date acceptable to the Company and the Administrator by the Secretary of State of the Seller authorizing the executionjurisdiction of such Originator’s organization, delivery, principal place of business and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) each jurisdiction where such Originator is qualified to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transact business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator may conclusively rely until such time as the Servicer, the Company and the Administrator shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be jurisdiction of such Originator’s organization as of a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory recent date acceptable to the Administrative AgentAdministrator, together with a copy of the Administrative Agent shall be entitled to rely on the last by-laws or limited liability company agreement of such certificate delivered to it Originator (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary of such Originator.;
(fe) Acknowledgment copies, or time stamped receipt copies Originals of proper financing statements, statements (Form UCC-1) that have been duly authorized and filed on or before within ten days after the date Closing Date and name each Originator as the debtor/seller and the Company as the buyer/assignor (and the Administrator, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such initial Purchase Originator as may be necessary or, in the Company’s or the Administrator’s opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (with including, without limitation, Related Security) in which an ownership or security interest has been assigned to it hereunder; 9205569 09039541
(f) A written search report from a first priority) Person satisfactory to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Administrator listing all effective financing statements that name any of the Transferors and the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated as the case may be prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and similar tax and judgment lien search reports with respect to judgment liensfrom all applicable jurisdictions (including, federal tax liens and without limitation liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, Corporation) showing no evidence of such liens on filed against any of the Pool Assets, Pool Receivables, Contracts or Related Security.Originator;
(ig) Copies Favorable opinions of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇LLP, counsel for the Originator and the Seller, addressed to the Administrative AgentOriginators and in-house counsel to Patriot, each Purchaserin form and substance satisfactory to the Company, the Administrator and each Purchaser Agent Agent;
(h) A Company Note in favor of each Originator, duly executed by the Company;
(i) Evidence (i) of the execution and delivery by each Alternate Purchaser substantially of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the form conditions precedent to the execution, delivery and effectiveness of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerCompany’s and the OriginatorAdministrator’s collectionsatisfaction; and
(j) A certificate from an officer of each Originator to the effect that such Originator has placed on the most recent, operating and reporting systemshas taken all steps reasonably necessary to ensure that there shall be placed on subsequent, Credit data processing reports a legend reasonably acceptable to the Company and Collection Policy, historical receivables data the Administrator indicating that the Receivables described therein have been sold to the Company pursuant to this Agreement and accounts, including satisfactory results of a review that an interest in the same Receivables has been granted to the Administrator (for the benefit of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as definedPurchasers) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Purchase Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of pursuant to this Agreement is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Administrator, on the Purchaser's behalf, shall have received received, on or before the date of such initial Purchase, the following, each (unless otherwise indicated) dated such date and in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart of this Agreement and the other Transaction Documents The Sale Agreement, duly executed and delivered by the parties thereto.thereto (and the Seller Note, as defined in the Sale Agreement, duly executed by the Seller);
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the each Seller Party certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until Administrator and the Administrative Agent receives a subsequent incumbency certificate from Purchaser may conclusively rely until such time as the Seller in form and substance satisfactory to the Administrative AgentAdministrator, the Administrative Agent shall be entitled to rely on the last Purchaser's behalf, shall receive from such Seller Party a revised certificate meeting the requirements of this subsection (b)) and certifying a copy of the resolutions of the Board of Directors of each Seller Party approving the Transaction Documents to be delivered to by it and the transactions contemplated hereby and thereby;
(c) The Articles or Certificate of Incorporation of each Seller Party, duly certified by the Seller.Secretary of State of such Seller Party's state of incorporation, as of a recent date acceptable to Administrator, on the Purchaser's behalf, in each case together with a copy of the by-laws of such Seller Party, duly certified by the Secretary or an Assistant Secretary of such Seller Party;
(d) Certified copies Copies of (i) good standing certificates for each Seller Party, issued by the resolutions Secretaries of State of the board state of directors (or its designated committee) incorporation of the such Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement Party and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate state where such Seller Party's principal place of incorporation and by-laws of the Seller and Originator.business is located;
(e) A certificate Executed and completed (i) financing statements (Form UCC-1), in such form as the Administrator, on the Purchaser's behalf, may reasonably request, naming each of the Secretary or Assistant Secretary Originators as the debtor and seller of the Originator certifying Receivables and Related Rights, the names Seller as the secured party and true signatures purchaser thereof and the Purchaser as assignee, and (ii) financing statements (Form UCC-1), in such form as the Administrator, on the Purchaser's behalf, may reasonably request, naming the Seller as the debtor and seller of an undivided percentage interest in the Pool Receivables and Related Assets and the Purchaser as the secured party and purchaser thereof, or other, similar instruments or documents, as may be necessary or, in the opinion of the officers Administrator, on the Purchaser's behalf, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by each Originator authorized to sign this Agreement the Seller of, and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentPurchaser's undivided percentage interest in, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.Pool Receivables and Related Assets;
(f) Acknowledgment copiesSearch reports provided in writing to the Administrator, or time stamped receipt copies of proper financing statementson the Purchaser's behalf, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priorityi) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements that name any Seller Party as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fe) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.other
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lifestyle Furnishings International LTD)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase and contribution hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Company shall have received received, on or before the date of such PurchaseInitial Closing Date, the following, each (unless otherwise indicated) dated the Initial Closing Date, and each in form form, substance and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Company and each Purchaser the Agent:
(a) A counterpart copy of this Agreement the resolutions of the Board of Managers of Seller approving the Transaction Documents to be delivered by it and the other Transaction Documents duly executed transactions contemplated hereby and delivered thereby, certified by the parties thereto.Secretary or Assistant Secretary of Seller;
(b) Certified copies Certificate of (i) the resolutions Existence for Seller issued as of the board of directors of the Seller authorizing the execution, delivery, and performance a recent date by the Seller Secretary of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate State of incorporation and by-laws of the Seller.Delaware;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized on Seller's behalf to sign this Agreement the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than Seller) may conclusively rely until such time as the Company and the other Transaction Documents Servicer shall receive from Seller a revised certificate meeting the requirements of this subsection (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.c);
(d) Certified copies The Certificate of (i) Limited Liability Company of Seller, duly certified by the resolutions Secretary of State of Delaware as of a recent date, together with a copy of the board Operating Agreement of directors (or its designated committee) of the Seller and Servicer authorizing the executionSeller, delivery, and performance duly certified by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures Seller;
(e) Copies of the officers proper financing statements (Form UCC-1) that have been duly executed and name Seller as the assignor and the Company as the assignee (and Agent, on behalf of the Originator authorized to sign this Agreement Lenders, as assignee of the Company) of the Receivables and the other Transaction Documents (other than Related Rights or other, similar instruments or documents, as may be necessary or, in Servicer's or the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent's opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Rights in which the ownership interest may be assigned to it hereunder;
(with f) A written search report from a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Person satisfactory to Servicer and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, Agent listing all effective financing statements that name Seller as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause the foregoing subsection (f) above that name the Seller or the Originator as debtore), together with copies of such financing statementsstatements (none of which, except for those described in the foregoing subsection (e) shall cover any Receivable or any Related Right related to any Receivable) which is to be sold to the Company hereunder, and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liens, federal tax liens Servicer and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no evidence of such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.filed against Seller;
(g) Evidence (i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming of the rating other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of its Notes after giving effect the conditions precedent to the transactions contemplated by this Agreement.execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Company's satisfaction; and
(uh) Receipt A certificate from an officer or other appropriate manager of Seller to the effect that Servicer and satisfactory review of Seller have placed on the final Protiviti audit reportmost recent, and have taken all steps reasonably necessary to ensure that there shall be placed on subsequent, summary master control data processing reports the following legend (or the substantive equivalent thereof): THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD BY PACKAGING CORPORATION OF AMERICA TO PACKAGING CREDIT COMPANY, LLC AND THEN SOLD BY PACKAGING CREDIT COMPANY, LLC TO PACKAGING RECEIVABLES COMPANY, LLC; AND A SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND ASSIGNED BY PACKAGING RECEIVABLES COMPANY, LLC TO WACHOVIA BANK, N.A., AS AGENT.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Packaging Corp of America)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent Company and the Administrator (as the Company’s assignee) and each Purchaser Agent shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent Company and the Administrator (as the Company’s assignee) and each Purchaser Agent:
(a) A counterpart copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors or managers of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates for each Originator issued as of a recent date acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State of the Seller authorizing the execution, delivery, jurisdiction of such Originator’s organization and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) each jurisdiction where such Originator is qualified to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.transact business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrator (as the Company’s assignee) and each Purchaser Agent may conclusively rely until such time as the Servicer, the Company and the Administrator (as the Company’s assignee) and each Purchaser Agent shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation or other organizational document of each Originator duly certified by the Secretary of State of the Originator authorized to sign this Agreement and jurisdiction of such Originator’s organization as of a recent date, together with a copy of the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agentby-laws of such Originator, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it each duly certified by the Secretary or an Assistant Secretary of such Originator.;
(fe) Acknowledgment copies, Proper financing statements to be filed on or time promptly after the Closing Date or time-stamped receipt copies of proper financing statementsstatements filed prior to the Closing Date, duly filed on as applicable, name each Originator as the debtor/seller and the Company as the buyer/assignor (and the Administrator, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated or before acquired by such Originator as may be necessary or, in the date of such initial Purchase Company’s or the Administrator’s opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect the Company’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (with including, without limitation, Related Security) in which an ownership or security interest has been assigned to it hereunder;
(f) A written search report from a first priority) Person satisfactory to the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company and the PurchasersAdministrator (as the Company’s assignee) contemplated by listing all effective financing statements that name the Agreement Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to perfect (the applicable UCC, together with copies of such financing statements, and tax and judgment lien search reports from a first priority) Person satisfactory to the interests Company showing no evidence of the Seller as contemplated by the Receivables Sale Agreement.such liens filed against any Originator;
(g) Acknowledgment copies, Proper financing statements to be filed on or time promptly after the Closing Date or time-stamped receipt copies of proper terminations of financing statementsstatements filed prior to the Closing Date, if anyas applicable, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts Receivables or Related Security Rights previously granted by the Originator or the Sellerany Originator.
(h) Completed UCC search reportsA favorable opinion of counsel to the Originators, dated on or shortly before in form and substance satisfactory to the date of such initial PurchaseCompany, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, Administrator and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any each Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Agent;
(i) Copies A Company Note in favor of each Originator, duly executed Blocked Account Agreements with by the Blocked Account Banks.Company; and
(j) A favorable opinion Evidence (i) of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator execution and delivery by each of the Seller, addressed parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed Transaction Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerCompany’s and the OriginatorAdministrator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding AgreementCompany’s assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Fleetcor Technologies Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Buyer shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentBuyer:
(a) A counterpart copy of the resolutions of the board of directors or managers of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies Good standing certificates for each Originator issued as of a recent date acceptable to the Buyer by the Secretary of State (ior similar official) the resolutions of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator’s organization;
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Borrower and the Administrative Agent receives may conclusively rely until such time as the Servicer, the Buyer, the Borrower and the Administrative Agent shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) The certificate or articles of incorporation or formation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or limited liability company agreement of such Originator (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Originals of the proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Secured Parties, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest has been assigned to it hereunder;
(f) A written search report from a Person satisfactory to the Originator Buyer listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated as the case may be on or prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax, ERISA and judgment lien search reports from a Person satisfactory to the Buyer showing no evidence of such liens filed against any Originator;
(g) Favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Buyer;
(h) Completed UCC search reportsA Demand Note in favor of each Originator, dated on or shortly before duly executed by the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Buyer; and
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
Evidence (ji) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming of the rating other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of its Notes after giving effect the conditions precedent to the transactions contemplated by this Agreementexecution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Buyer’s satisfaction.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Alliance Resource Partners Lp)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer and the Administrative Agent and each Purchaser Agent (as ▇▇▇▇▇’s assignee for the benefit of the Secured Parties under the ABL Credit Agreement) shall have received on or before the date of such Purchasefollowing, each (unless otherwise indicated) dated the Purchase Agreement Effective Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent:(the date on which all such items have been received, the “Purchase Agreement Effective Date”):
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of the Seller approving this Agreement and the other Transaction Loan Documents duly to be executed US-DOCS\149440763.13 and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement it and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partytransactions contemplated hereby and thereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of certified by the Secretary or Assistant Secretary or other appropriate Seller Responsible Officer;
(b) good standing certificates for the Seller issued as of a recent date reasonably acceptable to the Buyer and the Administrative Agent by the Secretary of State (or similar official) of the jurisdiction of the Seller’s organization or formation;
(c) a certificate of a Seller Responsible Officer certifying the names and true signatures of the officers of authorized on the Seller authorized Seller’s behalf to sign this Agreement and the other Transaction Loan Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives and each Lender may conclusively rely until such time as the Servicer, the Buyer and the Administrative Agent shall receive from such Person a subsequent incumbency revised certificate from meeting the requirements of this clause (c));
(d) the certificate of formation (including all amendments and modifications thereto), as applicable, duly certified by the Secretary of State of the jurisdiction of the Seller’s organization as of a recent date, together with a copy of the limited liability company agreement or other governing documents of the Seller as currently in form effect (including all amendments and substance satisfactory to modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary or other appropriate Seller Responsible Officer;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name the Seller as the debtor/seller and the Buyer as the buyer/assignor secured party (and the Administrative Agent, for the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions benefit of the board of directors (or its designated committeeSecured Parties, as total assignee / secured party) of the Seller and Servicer authorizing the execution, delivery, and performance Subject Receivables sold by the Seller and Servicer of this Agreement and as may be necessary or, in the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary Buyer’s or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent’s reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that to perfect the Buyer’s ownership or security interest in such Subject Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person reasonably satisfactory to the Buyer and the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller as debtors or sellers and that are filed in all jurisdictions in which filings may be made against the Originator as debtorSeller pursuant to the applicable UCC, together with copies of such financing statementsstatements (none of which, except for those released or terminated, as the case may be, prior to the date hereof), shall cover any Subject Receivable or any Related Rights which are to be sold to the Buyer hereunder, and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions as PBGC) from a Person reasonably satisfactory to the Buyer and the Administrative Agent or any Purchaser Agent may request, showing no evidence of such liens on any filed against the Seller;
(g) [reserved];
(h) evidence (i) of the Pool Assetsexecution and delivery by each of the parties thereto of each of the Loan Documents to be executed and delivered by it in connection herewith and (ii) that each of the conditions precedent to the execution, Pool Receivables, Contracts or Related Security.delivery and effectiveness of such Loan Documents has been satisfied to the Buyer’s and the Administrative Agent’s satisfaction; and
(i) Copies of executed Blocked Account Agreements with evidence that the Blocked Account Banks.
conditions precedent in Section 4.1(i) and (j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Intermediate Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as Agreement shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfied.
Appears in 1 contract
Sources: Borrower Purchase and Contribution Agreement (Hawaiian Electric Co Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness purchase of a Receivable Interest under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such Purchasepurchase the following, each (unless otherwise indicated) dated such date, in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart Certified copies of the resolutions (or similar authorization, if not a corporation) of the Board of Directors (or similar governing body or Persons, if not a corporation) of the Seller and the Originators approving this Agreement, the Secondary Purchase Agreement, the Initial Purchase Agreement and the any other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party, (ii) party and certified copies of all documents evidencing other necessary corporate action or limited liability company action, as the case may be, and governmental approvals, if any, with respect to this Agreement, the Secondary Purchase Agreement, the Initial Purchase Agreement and the any such other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(cb) A certificate of the Secretary or Assistant Secretary of the Seller and the Originators certifying the names and true signatures of the officers of the Seller and the Originators authorized to sign this Agreement, the Secondary Purchase Agreement, the Initial Purchase Agreement and the other Transaction Documents documents to be delivered by it hereunder and thereunder.
(c) Acknowledgment copies (or other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance evidence of filing satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statementsstatements and financing statement amendments or terminations, as applicable, duly filed on or before the date of such initial Purchase purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the ownership and security interests of the Administrative Agent (on behalf of itselfcontemplated by this Agreement, the Purchaser Agents Secondary Purchase Agreement and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Initial Purchase Agreement.
(gd) Acknowledgment copies, copies (or time stamped receipt copies other evidence of filing satisfactory to the Agent) of proper terminations of financing statementsstatements and financing statements amendments or terminations, if anyas applicable, necessary to release or assign all security interests and other rights of any Person in (other than i) the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator Seller or the Originators and (ii) the collateral security referred to in Section 2.11 previously granted by the Seller.
(he) Completed UCC search reportsrequests for information, dated on or shortly before the date of such initial Purchasepurchase, listing all effective financing statements filed in the jurisdiction jurisdictions referred to in clause subsection (fc) above and in any other jurisdiction reasonably requested by the Agent that name the Seller or the any Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens statements (none of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or which shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts Contracts, Related Security or Related Securitythe collateral security referred to in Section 2.11).
(if) Copies Duly executed copies of executed Blocked all Deposit Account Control Agreements with the Blocked Account Banksand all necessary amendments thereto.
(jg) A favorable opinion Favorable opinions of Lily Y▇▇ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, corporate counsel for the Originator Seller and the SellerOriginators, addressed to and of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Administrative AgentParent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E C hereto and as to such other matters as the Administrative Agent may reasonably request.
(h) A duly executed copy of the Fee Agreement.
(i) [Reserved.]
(j) A duly executed copy of the (i) Initial Purchase Agreement and (ii) the Secondary Purchase Agreement.
(k) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the by-laws, counsel for the Originator limited liability company agreement, operating agreement or regulations (as applicable), and any amendments thereto, of the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent Seller and each Alternate Purchaser substantially in of the form Originators, certified by the Secretary or Assistant Secretary of Annex F and as to the Seller or such other matters Originator, as the Administrative Agent case may reasonably requestbe.
(l) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the certificate or articles of incorporation or the certificate of formation, counsel for as applicable, and any amendments thereto, of the Seller and the each Originator, addressed certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the Administrative Agent, each Purchaser, each Purchaser Agent good standing of the Seller and each Alternate Purchaser substantially in the form Originator from such Secretary of Annex G and State or other official, dated as to such other matters as the Administrative Agent may reasonably requestof a recent date.
(m) A favorable opinion The pro forma balance sheet of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed Seller referred to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably requestSection 4.01(e).
(n) Evidence of the termination of the existing receivables securitization facility and assignment of all Liens related thereto in form and substance acceptable to the Agent in its sole discretion.
(o) Payment of the Commitment Fee and the Rating Agency Fee, as set forth in the Fee Agreement.
(p) Payment of all other related costs and expenses (including costs and expenses related to the Audit described in clause (q) below and all reasonable attorney's fees and costs) incurred by the Agent, the Investors and/or the Banks as of the date hereof.
(q) Satisfactory results of a review by the Purchasers and audit of the Seller’s and the Originator’s 's collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s 's operating locations location(s) and satisfactory review and approval of the Eligible Receivables in existence on the date of the initial Purchase purchase under this Agreement.
(o) Monthly Receivables Report representing the performance First Tier Agreement and Second Tier Agreement and a written outside audit report as to such matters of a nationally recognized independent audit and consulting firm with in the scope of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced agreed upon procedures set forth in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.Annex I.
(r) Good standing certificates with respect A Monthly Report as of April 30, 2009 after giving effect to the Originator issued initial purchase of Receivable Interests by the Secretaries of Investors and the States of Delaware and CaliforniaBanks, as applicable, hereunder.
(s) An executed Receivables Sale AgreementSuch other approvals, opinions or documents as the Agent may reasonably request.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser Agent Lender shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) and each Purchaser AgentLender:
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator, approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (ias the Buyer’s assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.such Originator’s organization or formation;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each Originator, certifying the names and true signatures of the officers of the Seller authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives (as the Buyer’s assignee) and each Lender may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Lender shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor (and the Administrative Agent, for the benefit of the Lenders, as secured party/assignee) of the Receivables generated by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Seller Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator;
(g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Administrative AgentBuyer, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.Lender;
(h) Completed UCC search reportsa copy of an Intercompany Loan Agreement entered into by each Originator and the Buyer, dated on or shortly before duly executed by such Originator and the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Buyer; and
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers evidence of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit reportother Transaction Documents to be executed and delivered by it in connection herewith.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Compass Minerals International Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this under the Original Agreement is was subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such PurchasePurchase the following, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart copy of this the resolutions of the Board of Directors of each of the Seller and the Originator authorizing the Original Agreement and the Originator Purchase Agreement and the other Transaction Documents duly executed and documents to be delivered by it thereunder and the parties theretotransactions contemplated thereby, certified by its Secretary or Assistant Secretary.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) each of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of authorized on its behalf to sign the Original Agreement and the Originator authorized to sign this Purchase Agreement and the other Transaction Documents documents to be delivered by it thereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Purchasers and the Banks may conclusively rely unless and until such time as the Agent shall be entitled to rely on receive from the last such Seller or the Originator a replacement certificate delivered to it by meeting the Originatorrequirements of this subsection (b)).
(fc) Acknowledgment copies, copies or time stamped receipt copies of proper financing statementsFinancing Statements (Form UCC-1), duly filed on or before the date of such initial Purchase under the UCC of all appropriate jurisdictions or any comparable law that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the ownership and security interests of the Administrative Agent (on behalf of itself, the Purchaser Agents in all Receivables and the Purchasers) Related Security contemplated by the Original Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Originator Purchase Agreement.
(gd) Acknowledgment copies, copies or time stamped receipt copies of proper terminations of financing statementsFinancing Statements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person person in (other than i) the Seller Receivables and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Seller or the Originator or and (ii) the collateral security referred to in Section 2.10 previously granted by the Seller.
(he) Completed UCC Certified copies of requests for information or copies (Form UCC- 11) (or a similar search reportsreport certified by a party acceptable to the Agent), dated on or shortly before a date reasonably near to the date of such the initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that which name the Seller or the Originator (under its present name and any previous name) as debtordebtor and which are filed in the jurisdictions in which filings were made pursuant to subsection (c) above, together with copies of such financing statementsstatements (none of which, and similar search reports with respect other than the financing statements filed pursuant to judgment lienssubsection (c), federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or shall cover any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Related Security or Contracts or Related Securitythe collateral security referred to in Section 2.10).
(if) Copies of executed Blocked Account Agreements with the Blocked Account BanksThe Fee Agreement referred to in Section 2.05.
(jg) A favorable opinion or opinions of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator Seller and the SellerOriginator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex Exhibit E and as to such other matters as the Administrative Agent may reasonably request.
(kh) A favorable opinion of DKaye, Scholer, Fierman, ▇▇▇▇ ▇▇▇▇ s & WHandler, LLP, c▇▇▇▇▇▇▇, counsel el for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(i) A letter agreement with Fleet National Bank acknowledging the Agent's dominion and control over the Collection Account, duly executed by Fleet National Bank, the Originator and the Seller.
(j) A letter agreement acknowledging the Agent's dominion and control over the Supplemental Collection Account, duly executed by the Originator and the Seller.
(k) An executed copy of the Originator Purchase Agreement.
(l) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the by-laws of the Seller, counsel for certified by the Seller and Secretary or Assistant Secretary of the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably requestSeller.
(m) A favorable opinion copy of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and certificate or articles of incorporation of the Seller, addressed certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedfrom such Secretary of State or other official, dated as of a recent date.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Northeast Utilities System)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Administrative Agent and each Purchaser Agent Servicer (on the Company's behalf) shall have received received, on or before the date of such PurchaseClosing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:Servicer (acting on the Company's behalf):
(a) A counterpart An executed copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.Originator Assignment Certificate;
(b) Certified copies A copy of (i) the resolutions of the board Board of directors Directors of KBK approving the Seller authorizing Transaction Documents to be delivered by it and the executiontransactions contemplated hereby and thereby, delivery, and performance certified by the Seller Secretary or Assistant Secretary of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.KBK;
(c) Good standing certificates for KBK issued as of a recent date acceptable to the Servicer by the Secretary of State of the jurisdiction of KBK's incorporation and the jurisdiction where KBK's chief executive office is located;
(d) A certificate of the Secretary or Assistant Secretary of the Seller KBK certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Servicer and the Company may conclusively rely until such time as the Servicer shall receive from such Person a revised certificate meeting the requirements of this clause (d));
(e) The certificate or articles of incorporation of KBK, together with a copy of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.
(d) Certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of KBK, each duly certified by the Secretary or an Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.KBK;
(f) Acknowledgment copies, or time stamped receipt copies Originals of the proper financing statementsstatements (Form UCC-1) that have been duly executed and name KBK as the debtor/seller and the Company as the secured party/purchaser (and the Collateral Agent, duly filed on or before as assignee of the date Company) of such initial Purchase the Receivables generated by KBK as may be necessary or, in the Collateral Agent's reasonable opinion, desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Company's ownership interest in all Receivables and the Purchasers) contemplated by the Agreement and Related Rights in which an ownership or security interest may be assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC A written search reports, dated on or shortly before the date of such initial Purchase, report listing all effective financing statements that name KBK as debtors or sellers and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in the foregoing clause (f) above that name the Seller or the Originator as debtor), together with copies of such financing statementsstatements (none of which, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent unless terminated or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed assigned to the Administrative Agent, each Purchaser, each Purchaser Collateral Agent and each Alternate Purchaser substantially except for those described in the form of Annex E and as foregoing clause (f), shall cover any Receivable or the Related Rights which are to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed be sold to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.Company
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement (the date upon which such effectiveness occurs, the "Effective Date") is subject to the following conditions condition precedent that the Administrative Agent Buyer, the Administrator (as the Buyer's assignee) and each Purchaser Agent shall have received on the following, each (unless otherwise indicated) dated the Effective Date or before a date prior to the date of such PurchaseEffective Date approved by the Administrator, and each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Agent Buyer and the Administrator (as the Buyer's assignee) and each Purchaser Agent:
(a) A counterpart a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents duly to be executed and delivered by it and the parties thereto.transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) Certified copies a good standing certificate for Celanese U.S. Sales issued as of a recent date acceptable to the Buyer and the Administrator (ias the Buyer's assignee) by the resolutions Secretary of State (or similar official) of the board jurisdiction of directors of its organization or formation and each other jurisdiction where it is required to be qualified to transact business, except where the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) failure to which it will be so qualified would not reasonably be expected to have a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.Material Adverse Effect;
(c) A a certificate of the Secretary or Assistant Secretary of the Seller Celanese U.S. Sales certifying the names and true signatures of the officers of the Seller authorized on such Person's behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentServicer, the Administrative Buyer, the Administrator (as the Buyer's assignee) and each Purchaser Agent may conclusively rely until such time as the Servicer, the Buyer, the Administrator (as the Buyer's assignee) and each Purchaser Agent shall be entitled to rely on receive from such Person a revised certificate meeting the last such certificate delivered to it by the Seller.requirements of this clause (c));
(d) Certified copies the certificate or articles of incorporation or other organizational document of Celanese U.S. Sales (iincluding all amendments and modifications thereto) duly certified by the resolutions Secretary of State of the board jurisdiction of directors (or its designated committee) organization as of a recent date, together with a copy of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws or other governing documents of Celanese U.S. Sales (including all amendments and modifications thereto), as applicable, each duly certified by the Seller and Originator.Secretary or an Assistant Secretary of Celanese U.S. Sales;
(e) A certificate proper financing statements (Form UCC-1) that have been duly authorized and name Celanese U.S. Sales as the debtor/seller and the Buyer as the buyer/assignor (and the Administrator, for the benefit of the Secretary or Assistant Secretary Purchasers, as secured party/assignee) of the Originator certifying Receivables generated by Celanese U.S. Sales as may be necessary or, in the names and true signatures of Buyer's or the officers of the Originator authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Originator in form and substance satisfactory to the Administrative AgentAdministrator's reasonable opinion, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents Buyer's ownership or security interest in such Receivables and the Purchasers) contemplated by the Agreement and Related Rights in which an ownership or security interest has been assigned to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.it hereunder;
(gf) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary a written search report from a Person satisfactory to release all security interests and other rights of any Person (other than the Seller Buyer and the Administrative AgentAdministrator (as the Buyer's assignee) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements that name Celanese U.S. Sales as debtor or seller and that are filed in all jurisdictions in which filings may be made against Celanese U.S. Sales pursuant to the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtorapplicable UCC, together with copies of such financing statementsstatements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and similar tax and judgment lien search reports with respect to judgment liens(including, federal tax liens and without limitation, liens of the Pension Benefit Guaranty Corporation in such jurisdictions Corporation) from a Person satisfactory to the Buyer and the Administrator (as the Administrative Agent or any Purchaser Agent may request, Buyer's assignee) showing no evidence of such liens on any filed against Celanese U.S. Sales;
(g) favorable opinions of counsel to Celanese U.S. Sales, in form and substance reasonably satisfactory to the Buyer, the Administrator and each Purchaser Agent;
(h) an allonge reflecting Celanese Acetate's assignment of the Pool AssetsSubordinated Note in favor of Celanese U.S. Sales, Pool Receivables, Contracts or Related Security.duly executed by Celanese Acetate; and
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
evidence (ji) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the Seller’s execution and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment delivery by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Letter.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes parties thereto of each Conduit Purchaser confirming of the rating other Transaction Documents to be executed and delivered by it in connection herewith and (ii) that each of its Notes after giving effect the conditions precedent to the transactions contemplated by this Agreement.
(u) Receipt execution, delivery and satisfactory review effectiveness of such other Transaction Documents has been satisfied to the final Protiviti audit report.
(v) Evidence that Buyer's and the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” Administrator's (as defined in the GE Receivables Funding AgreementBuyer's assignee) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedsatisfaction.
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement purchase hereunder is subject to the following conditions condition precedent that the Buyer and the Administrative Agent and each Purchaser Agent (as Buyer’s assignee for the benefit of the Secured Parties under the ABL Credit Agreement) shall have received received, on or before the date of such PurchaseClosing Date, the following, each in form and substance (including unless otherwise indicated) dated the date thereof) satisfactory to the Administrative Agent Closing Date, and each Purchaser Agent:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Buyer and the Administrative Agent, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller.:
(da) Certified copies a copy of (i) the resolutions or unanimous written consent of the board of directors (or its designated committee) other governing body of the Seller and Servicer authorizing the execution, delivery, and performance by the Seller and Servicer of each Originator approving this Agreement and the other Transaction Loan Documents (other than the Ancillary Documents) to which be executed and delivered by it will be a party, (ii) all documents evidencing other necessary corporate and shareholder action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party transactions contemplated hereby and (iii) the certificate of incorporation and by-laws of the Seller and Originator.
(e) A certificate of thereby, certified by the Secretary or Assistant Secretary of such Originator;
(b) good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the failure to be so qualified would not reasonably be expected to have an Originator Material Adverse Effect;
(c) a certificate of a Responsible Officer of each Originator certifying the names and true signatures of the officers of the Originator authorized on such Person’s behalf to sign this Agreement and the other Transaction Loan Documents to be executed and delivered by it (other than on which certificate the Ancillary Documents) to which it will be a party. Until Servicer, the Buyer, the Administrative Agent receives and each Lender may conclusively rely until such time as the Servicer, the Buyer and the Administrative Agent shall receive from such Person a subsequent incumbency revised certificate meeting the requirements of this clause (c));
(d) the certificate of formation, articles of incorporation or articles of organization of each Originator (including all amendments and modifications thereto), as applicable, duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor secured party (and the Administrative Agent, for the benefit of the Secured Parties, as assignee secured party) of the Receivables sold by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person satisfactory to the Buyer and the Administrative Agent listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Originator pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent showing no evidence of such liens filed against any Originator;
(g) customary opinions of counsel to the Originators and the Servicer, addressed to the Administrative Agent and each Lender under the ABL Credit Agreement, in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall be entitled to rely on the last covering such certificate delivered to it by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copies, or time stamped receipt copies of proper terminations of financing statements, if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(h) Completed UCC search reports, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the jurisdiction referred to in clause (f) above that name the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may shall have reasonably request.requested, including, without limitation, (i) certain corporate and no conflict matters (including non-contravention of the Company Credit Agreement), (ii) certain New York enforceability matters, (iii) certain true-sale and bankruptcy consolidation matters and (iv) certain UCC creation and perfection matters;
(kh) A favorable opinion a copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the Intercompany Loan Agreement duly executed by parties thereto and copies of each Intercompany Loan in favor of each Originator, counsel for duly executed by the Originator Buyer; and
(i) evidence (i) of the execution and delivery by each of the Seller, addressed parties thereto of each of the other Loan Documents to be executed and delivered by it in connection herewith and (ii) that each of the conditions precedent to the Administrative Agentexecution, each Purchaser, each Purchaser Agent delivery and each Alternate Purchaser substantially in the form effectiveness of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed Loan Documents has been satisfied to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.
(m) A favorable opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex H and as to such other matters as the Administrative Agent may reasonably request.
(n) Satisfactory results of a review by the Purchasers of the SellerBuyer’s and the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrative Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Seller and the Administrative Agent); including any such costs, fees and expenses arising under or referenced in Section 6.4, the Fee Letter and the Engagement Lettersatisfaction.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this Agreement.
(u) Receipt and satisfactory review of the final Protiviti audit report.
(v) Evidence that the “Liens” created (and as defined) under the GE Receivables Funding Agreement have been released in full, all outstanding “Advances” (as defined in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminated.
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