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 under this Agreement is subject to the following conditions 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 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 of directors of each of the Seller Seller, the Originators and the Servicer authorizing the execution, delivery, delivery and performance by the Seller Seller, such 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 limited liability company or 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 and the Servicer.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the 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 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 or the Servicer, as the case may be.
(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 statements, duly filed on or before the date of such initial Purchase Closing Date 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 and the Administrator (on behalf of each Purchasers) contemplated by this Agreement and the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 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 2 contracts
Sources: Receivables Purchase Agreement (Triumph Group Inc), Receivables Purchase Agreement (Triumph Group 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 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 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 or validly subsisting 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.transact business;
(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 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) Copies of 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;
(f) 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;
(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 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;
(h) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel to 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 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[Intentionally Omitted.]
(j) A favorable opinion certificate from an officer of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator to the effect that the Servicer and the SellerOriginator have placed on the most recent, addressed and have taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, data processing report that the Administrative AgentOriginator generates which are of the type that a proposed purchaser or lender would use to evaluate the Receivables, each Purchaserthe following legend (or the substantive equivalent thereof): “THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN CONTRIBUTED OR SOLD BY UGI ENERGY SERVICES, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex E and as to such INC. TO ENERGY SERVICES FUNDING CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF NOVEMBER 30, 2001, AS MAY BE AMENDED FROM TIME TO TIME, BETWEEN UGI ENERGY SERVICES, INC. AND ENERGY SERVICES FUNDING CORPORATION, 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 NOVEMBER 30, 2001 AS MAY BE AMENDED FROM TIME TO TIME, AMONG ENERGY SERVICES FUNDING CORPORATION, AS SELLER, UGI ENERGY SERVICES, INC., AS SERVICER, MARKET STREET FUNDING CORPORATION, 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.
(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 (Ugi Corp /Pa/), Purchase and Sale Agreement (Ugi Corp /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 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 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) reasonable satisfactory to the Administrative Agent Administrator and each Purchaser AgentAgent the following:
(a) A counterpart of this Agreement and the other Transaction Documents to be dated as of the Closing Date, each duly executed and delivered by the parties thereto.
(b) Certified copies of Copies of: (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, delivery and performance by Targa, the Seller Seller, each Originator and the Servicer 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 evidence of 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 organizational documents of incorporation Targa, the Seller, each Originator and by-laws the Servicer, in each case, certified by the Secretary or Assistant Secretary of the Sellerapplicable party and, in the case of good standing certificates, certificates of qualification, certificates of formation or similar documents, the applicable secretary of state.
(c) A certificate of the Secretary or Assistant Secretary of Targa, the Seller Seller, the 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 is a party. Until the Administrative Administrator and each Purchaser Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentTarga, the Administrative Seller, an Originator or the Servicer, as the case may be, the Administrator and each Purchaser Agent shall be entitled to rely on the last such certificate delivered to it by the Seller, such Originator or the Servicer, as the case may be.
(d) Certified copies of (i) Financing statements, in form and substance suitable for filing, each to be sent for filing by the resolutions Administrator on or before the Closing Date under the UCC of the board jurisdiction of directors (or its designated committee) organization of the debtor named therein in order to perfect the interests of the Seller and Servicer authorizing the execution, delivery, and performance by Administrator (for the Seller and Servicer benefit 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 this Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(ge) Acknowledgment copies, Evidence satisfactory to the Administrator of the termination or time stamped receipt copies release of proper terminations of financing statements, if any, necessary to release all security interests and other rights Adverse Claims of any Person (other than in any Pool Assets, together with UCC termination statements or partial releases, in form and substance suitable for filing, to terminate or release such Adverse Claims as a matter of record, each to be sent for filing on or before the Seller and the Administrative Agent) Closing Date in the Pool Receivables, Contracts or Related Security previously granted by jurisdiction in which the Originator or the Sellerrelated initial financing statements were filed.
(hf) Completed UCC search reportsreports from the State of Delaware, dated on or shortly before within 10 Business Days prior to the date of such initial PurchaseClosing Date, listing all effective financing statements filed with the secretary of state in such jurisdiction, that name Targa, any Originator or the Seller as debtor showing no Adverse Claims on any Pool Assets (other than those which have been released as described in the jurisdiction referred to in preceding 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 Securitye)).
(ig) 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 SellerFavorable opinions, addressed to the Administrative AgentAdministrator, each Purchaser, each Purchaser Agent and each Alternate Liquidity Provider, in form and substance reasonably satisfactory to the Administrator and each Purchaser substantially in the form Agent, 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▇▇▇▇▇▇▇▇ LLP, counsel for Targa, the Seller Seller, the Originators 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 Servicer covering such other matters as the Administrative Administrator or any Purchaser Agent may reasonably request, including, without limitation, organizational and enforceability matters, certain bankruptcy matters, and certain UCC perfection and priority matters (based on the search results referred to in clause (f) above and the officer’s certificate referred to in clause (c) above).
(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.
(nh) Satisfactory results of a review review, field examination and audit (performed by the Purchasers representatives of the Seller’s and Administrator) of the OriginatorServicer’s collection, operating and reporting systems, the Credit and Collection PolicyPolicy of each Originator, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the OriginatorServicer’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.
(oi) Monthly Receivables Report A pro forma Information Package representing the performance of the portfolio of Receivables Pool Receivables for the month prior to the initial Purchasemost recent Fiscal Month before closing.
(pj) 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 invoiced and due and payable on the date thereofClosing Date, 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, 6.4 of this Agreement and the Fee Letter and the Engagement Letter.
(qk) Good standing certificates with respect to each of the Seller Seller, each Originator and the Servicer issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware and Californiaeach such Person’s organization or formation.
(rl) Good standing certificates Such other information with respect to the Originator issued by Receivables as the Secretaries of the States of Delaware and CaliforniaAdministrator or any Purchaser Agent may reasonably request.
(sm) An executed Receivables Sale AgreementSuch other approvals, opinions or documents as the Administrator or any Purchaser 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 2 contracts
Sources: Receivables Purchase Agreement (Targa Resources Partners LP), Receivables Purchase 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 (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 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 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 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, 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 under this Agreement is subject to the following conditions 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 of this Agreement and the other Transaction Documents duly (including, without limitation, that certain Fourth Amendment to the Sale Agreement, dated as of the Closing Date, among the parties thereto) 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 and the Servicer authorizing the execution, delivery, delivery and performance by the Seller Seller, such 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 and the Servicer.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the 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 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 or the Servicer, as the case may be.
(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 statements, duly filed on or before the date of such initial Purchase purchase 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 and the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 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[Reserved].
(ig) 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 SellerFavorable opinions, addressed to each Rating Agency, the Administrative AgentAdministrator, each Purchaser, each Purchaser Agent and each Alternate Liquidity Provider, in form and substance reasonably satisfactory to the Administrator and each Purchaser substantially in Agent, of King & Spalding LLP, counsel for Seller, the form of Annex E Originators and as to the Servicer, covering such other matters as the Administrative Administrator or any Purchaser Agent may reasonably request, including, without limitation, organizational and enforceability matters, noncontravention matters and certain bankruptcy matters (or, as agreed to by each Purchaser Agent, bring down or reliance letters relative to opinions delivered by such counsel under the Second Amended and Restated Receivables Purchase Agreement).
(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[Reserved].
(li) 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) pro forma Monthly Receivables Report Information Package representing the performance of the portfolio of Receivables Pool Receivables for the calendar month prior to before closing and pro forma Weekly Information Package representing the initial Purchaseperformance of the Receivables Pool for the calendar week before closing.
(pj) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the each Purchaser Group 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 6.4 of this Agreement and the Engagement Letterapplicable Purchaser Group Fee Letters.
(qk) Good standing certificates with respect to each of the Seller Seller, the Originators and the Servicer issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware each such Person’s organization and Californiaprincipal place of business.
(rl) Good standing certificates with respect to To the Originator issued extent required by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters each Conduit Purchaser’s commercial paper program, letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its such Notes after giving effect to the transactions transaction contemplated by this Agreement.
(um) Receipt and satisfactory review of A computer file containing all information with respect to the final Protiviti audit reportReceivables as the Administrator or any Purchaser Agent may reasonably request.
(vn) Evidence that Such other approvals, opinions or 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 or any Purchaser Agent may reasonably request.
Appears in 2 contracts
Sources: Receivables Purchase Agreement, Receivables Purchase Agreement (Fleetcor Technologies 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 shall have received on or before the date of such Purchaseeffectiveness 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) The Purchase and Sale Agreement duly executed by Seller and each Originator that is a party thereto, and evidence that the conditions precedent set forth therein have been satisfied;
(b) A counterpart copy of the resolutions of the Board of Directors of Seller and each Originator 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 of incorporation and by-laws of the Seller.certified by its Secretary or Assistant Secretary;
(c) Good standing certificates for Seller issued by the Secretaries of State of Nevada and Wisconsin and for each domestic Originator issued by the Secretaries of State of Wisconsin, Nevada, California, Delaware, Connecticut or Massachusetts, as appropriate, and for each foreign Originator by the appropriate authority in its jurisdiction of formation and of its principal place of 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 of the Originator authorized on its behalf to sign this Agreement and the other Transaction Agreement Documents to be delivered by it hereunder (other than on which certificate the Ancillary DocumentsAgent and Purchaser may conclusively rely until such time as the Agent shall receive from Seller or such Originator, as the case may be, a revised certificate meeting the requirements of this subsection (d));
(e) The Articles of Incorporation of Seller and each domestic Originator, duly certified by the Secretary of State of the state of its incorporation, as of a recent date acceptable 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, together with a copy of the Administrative Agent shall be entitled to rely on the last such certificate delivered to it By-laws of Seller and each Originator, duly certified by the Secretary or an Assistant Secretary of such Person; and a copy of the constating documents for each foreign Originator., duly certified by the appropriate authority or the Secretary or an Assistant Secretary of such Originator, as applicable;
(f) Acknowledgment copies, copies (or time stamped receipt copies other evidence of filing reasonably acceptable to the Agent) of proper (i) financing statementsstatements and/or assignments effectively naming each domestic Originator, duly respectively, as debtor/seller, Seller as secured party/purchaser and Purchaser as assignee and (ii) financing statements and/or assignments effectively naming Seller, as debtor/seller and Purchaser as secured party/purchaser, in each case filed on or before the date of in such initial Purchase under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem as are necessary or desirable in order advisable to perfect (with a first priority) Seller's or the interests of Purchaser's interest 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.Pool Assets;
(g) Acknowledgment copies, A search report provided in writing to the Agent by CT Corporation 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 PurchaseLexis Document Services, listing all effective financing statements that name any domestic Originator as debtor and that are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (f) 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 shall cover any Pool Assets unless assigned to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent Purchaser or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.terminated);
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jh) 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 Seller and each Alternate Purchaser Originator, in substantially in the form of Annex F Exhibit 5.01(h);
(i) Evidence of the payment of any applicable Agent's fee;
(j) Duly executed copy of a Periodic Report as of October 31, 1997;
(k) The original of the Demand Note, duly executed by API and as endorsed by Seller, shall have been delivered to the Agent;
(l) The Fee Letter and each Lock-Box Agreement, duly executed by the parties thereto, shall have been delivered to the Agent; and
(m) All such other matters approvals, opinions or documents as the Administrative Agent may reasonably request.
(l) A favorable opinion , including written confirmation from each rating agency that the rating on the Commercial Paper Notes will not be downgraded, withdrawn or suspended as a result of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the Purchaser entering into the transaction contemplated hereunder, counsel for the Seller and the Originator, addressed shall have been delivered 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 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 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 is subject Prior to the initial purchase hereunder, the Customer shall deliver to WFBC, unless waived by it, the following conditions precedent that the Administrative Agent items and each Purchaser Agent shall have received on or before the date of such Purchasedocuments, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentWFBC:
(a) A counterpart an executed copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.Agreement;
(b) Certified copies of (i) the resolutions a certificate of an officer of the board Customer containing a copy 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 its articles of incorporation and by-laws bylaws, an appropriate resolution of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying its directors, and the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Related 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, deliverybehalf, 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 an officer of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying Customer containing the names and true signatures of the officers of the Originator authorized to sign all reports and other submissions under this Agreement and the other Transaction Related Documents (other than the Ancillary Documents) on its behalf, on which certificates WFBC shall be entitled to which it will be a party. Until the Administrative Agent conclusively rely until such time as WFBC receives a subsequent incumbency certificate from the Originator Customer a replacement certificate meeting the requirements of this Section 4.01(b)(i) or (ii), as the case may be;
(c) a certificate of status, good standing or compliance in respect of the Customer issued by its jurisdiction of incorporation and a certificate of status, good standing or compliance in respect of the Customer issued by the appropriate authorities in each jurisdiction in which the Customer is required to be registered in order to conduct its business;
(d) evidence (which shall include an officer’s certificate of the Customer), in form and substance satisfactory to the Administrative AgentWFBC, 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 Customer and the Purchasers) contemplated by the Agreement and other parties 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 YAcquisition and Share Exchange Agreement by and among Corporate Resource Services, Inc., the Customer and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, corporate counsel for dated November 21, 2011, and (ii) all other documents, instruments and agreements related thereto, will be prepared to close, upon the Originator funding of the initial purchase hereunder, such transactions substantially upon the terms set forth in such agreements;
(e) a guaranty by the Customer guaranteeing the obligations owing under each Affiliate Account Purchase Agreement;
(f) an amended and the Sellerrestated account purchase agreement with D & D Staffing, addressed Corp.;
(g) an amendment to the Administrative Agenteach Affiliate Account Purchase Agreement;
(h) an amended and restated guaranty by Corporate Resource Services, Inc.;
(i) an amendment to each Purchaserguaranty by Insurance Overload Services, Inc., Corporate Resource Development Inc. and Diamond Staffing Services, Inc.;
(j) separate tri-party agreements by and among each Purchaser Agent Affiliate that is party to an Affiliate Account Purchase Agreement, TS Employment Inc. and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.WFBC;
(k) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇an amendment to continuing guaranty and waiver and waiver, counsel for the Originator duly executed by Tri-State Employment Services, Inc.;
(1) an amendment to securities pledge agreement, duly executed by Tri-State Employment Services, Inc., Tri-State North Carolina, Inc. 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.Customer;
Appears in 1 contract
Sources: Account Purchase Agreement (Corporate Resource Services, Inc.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Agreement is hereunder was subject to the following conditions precedent that the Administrative conditions precedent to the initial "Purchase" under the Ciesco Agreement were satisfied on or prior to the date of such ▇▇▇▇hase and that the 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 of this Agreement and the other Transaction Documents duly executed and delivered by the parties theretoThe Original Certificate.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of the Seller authorizing approving the execution, delivery, and performance by the Seller of this Original Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partyOriginal Certificate, (ii) and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this the Original 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 SellerOriginal Certificate.
(c) A certificate of the Secretary or Assistant Secretary or General Counsel of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this the Original Agreement and the Original Certificate and the other Transaction Documents (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 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 Acknowledgment 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 the initial Purchase Purchase, under the UCC of all jurisdictions that the Administrative Agent and each Purchaser Agent may deem deemed necessary or desirable in order to perfect (with a first priority) the ownership interests of the Administrative Agent (on behalf of itself, the Purchaser Agents and the Purchasers) contemplated created by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Original Agreement.
(ge) 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 (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the Seller.
(hf) Completed UCC search reportsrequests for information, dated on or shortly before the date of such the initial Purchase, listing the financing statements referred to in subsection (d) above and all other effective financing statements filed in the jurisdiction jurisdictions referred to in clause subsection (fd) above that name named the Seller or the Originator as debtor, together with copies of such other financing statements, and similar search reports with respect statements (none of which were to judgment liens, federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or 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.
(jg) A favorable opinion of Lily YThomas J. Pitner, Esq., Vice President and General Counsel ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, 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.
(kh) A favorable opinion of D▇▇▇▇ ▇▇▇▇ Kaye, Scholer, Fierman, Hays & W▇▇▇▇▇▇▇Handler, 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 DAge▇▇▇▇ ▇▇▇▇ & 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 (Ies Utilities 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 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 the execution, delivery, and performance by the Seller of this Agreement and the other each Transaction Documents (other than the Ancillary Documents) Party approving each Transaction Document 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 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 each Transaction Party certifying the names and true signatures of the officers of the Seller such Transaction Party authorized to sign this Agreement and the other Transaction 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.
(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.
(fc) Acknowledgment copies, copies or time stamped receipt copies (or other evidence of filing) of proper financing statements, 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 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 Agreement.
(gd) Acknowledgment copies, copies or time stamped receipt copies of proper terminations of financing statements, if any, statements 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 any Transaction Party or the Sellerany of their respective Affiliates.
(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 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 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 referred to in Section 2.10 except to the extent the Agent shall have received executed termination statements therefor pursuant to subsection (d) above).
(if) Copies Executed copies of executed Blocked Account Agreements with the for each Blocked Account Banksand each Lock-Box.
(jg) A favorable opinion Favorable opinions of Lily Y▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇, corporate counsel for the Originator ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP 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▇▇▇▇▇▇▇Priest LLP, counsel for the Seller, the Servicer, the Originator and CEG, relating to true sale and substantive consolidation issues, enforceability of this Agreement and the Sellerother Transaction Documents, addressed to the Administrative Agentperfection of security interests, each Purchasernon-contravention of laws and agreements, each Purchaser Agent general corporate matters and each Alternate Purchaser substantially in the form of Annex F and as to such other matters as the Administrative Agent may reasonably request.
(h) An executed copy of the Sale Agreement.
(i) An executed copy of the Performance Guaranty.
(j) A copy of the by-laws of each Transaction Party, certified by the Secretary or Assistant Secretary of such Transaction Party.
(k) A copy of the certificate or articles of incorporation of each Transaction Party, certified as of a recent date by the Secretary of State or other appropriate official of the State of incorporation of such Transaction Party, and a certificate as to the good standing of each Transaction Party from such Secretary of State or other official, dated as of a recent date.
(l) A favorable opinion The opening pro forma balance sheet of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed referred 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 4.01(e).
(m) A favorable opinion Executed copies of Morris, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed Termination Agreements relating 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 requestExisting Receivables Facilities.
(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 (Columbia Energy Group)
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 Administrator and each the Subordinated 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 Administrator and each Purchaser Agentthe Subordinated Purchaser:
(a) A counterpart copies of the resolutions of the boards of directors of Seller, Servicer and CHR, respectively, approving this Agreement and the other Transaction Documents duly executed to be delivered hereunder and delivered the transactions contemplated hereby, certified by the parties thereto.Secretary or Assistant Secretary of each such company;
(b) Certified copies a good standing certificate for Seller issued by the Secretary of (i) State of Minnesota; for the resolutions Servicer issued by the Secretary of the board State of directors of the Seller authorizing the execution, deliveryWisconsin, and performance for CHR issued 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 SellerMinnesota.
(c) A a certificate of the Secretary or Assistant Secretary of the Seller each of Seller, Servicer and CHR certifying the names and true signatures of the officers of the Seller authorized on its behalf to sign this Agreement and and/or 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 the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentAdministrator, the Administrative Agent Relationship Bank and the Purchasers may conclusively rely until such time as each of them shall be entitled to rely on receive from Seller, Servicer or CHR 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 of Seller, Servicer and CHR duly certified by the resolutions Secretary of State of their respective states of incorporation, as of a recent date acceptable to Administrator, 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 of Seller, Servicer and CHR duly certified by the Seller and Originator.Secretary or an Assistant Secretary thereof;
(e) A certificate acknowledgment copies of proper financing statements (Form UCC- 1), filed on or prior to the date of the Secretary initial Purchase, naming Seller as the debtor and seller of Receivables or Assistant Secretary an undivided interest therein and each Purchaser as the secured party and purchaser, and naming Cityside as the debtor and seller of Receivables, Seller as the secured party and purchaser and Purchasers as assignees of Seller's position, or other, similar instruments or documents, as may be necessary or, in the opinion of the Originator certifying Administrator, desirable under the names and true signatures UCC or any comparable law of all appropriate jurisdictions to perfect the officers of Purchasers' Interests in 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.Property;
(f) Acknowledgment copies, a search report provided in writing to the Administrator by CSR Networks 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, Cityside listing all effective financing statements 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 and in such other jurisdictions that name the Seller or the Originator as debtor-------------- Administrator shall reasonably request, together with copies of such financing statementsstatements (none of which shall cover any Property);
(g) evidence of the establishment of Depository Accounts, and similar search reports together with duly executed copies of Depository Letters with respect to judgment liens, federal tax liens and liens each such Depository Account; evidence 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 establishment of the Pool AssetsCityside Account, Pool Receivables, Contracts or Related Security.together with an appropriate segregation agreement as contemplated in Section 3.01(b); and evidence of the establishment of the Collection --------------- Account;
(ih) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A 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 to Seller 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 Exhibit 5.01(h-1) and as to such other matters as the Administrative Agent may reasonably request.
(l) A a favorable ----------------- opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇Whitney counsel to CHR, counsel for the Seller and the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex G Exhibit 5.01(h-2); -----------------
(i) such sublicenses as the Administrator shall require with regard to all computer programs leased by Seller and used in the servicing of the Receivables Pool;
(j) 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;
(k) a pro forma Information Package, prepared in respect of the --- ----- proposed initial Purchase, assuming a Purchase Cut-Off Date of October 11, 1995, together with a computer file containing all account information with respect thereto;
(l) a report in form and substance satisfactory to the Administrator from the Relationship Bank as to such other matters as a pre-closing due diligence audit of Seller by the Administrative Agent may reasonably request.Relationship Bank;
(m) A favorable opinion of Morristhe Liquidity Agreement, Nichols, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and the Seller, addressed to the Administrative Agent, each duly executed by Purchaser, each Purchaser the Liquidity 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.Liquidity Bank;
(n) Satisfactory results of a review Back-Up Servicing Agreement, duly executed by the Purchasers of the Seller’s Back-Up Servicer 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.other parties thereto;
(o) Monthly Receivables Report representing written approval by the performance Credit Bank of this Agreement and the portfolio of Pool Receivables for the month prior to the initial Purchase.transactions contemplated hereby;
(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 letters from each of the rating agencies then rating the Commercial Paper Notes, confirming 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 hereby; (q) favorable "non-substantive consolidation" and "true sale" opinions issued by this Agreement.
(u) Receipt and satisfactory review of counsel to 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.Seller;
Appears in 1 contract
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of under this Agreement is subject to the following conditions 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 of this the Agreement and the other Transaction Documents duly (including the First Amendment to the Sale Agreement) 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 and WESCO authorizing the execution, delivery, delivery and performance by the Seller Seller, such Originator and WESCO, as the case may be, of this the 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 the 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 Originator and WESCO.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the Originators and WESCO certifying the names and true signatures of the its officers of the Seller who are authorized to sign this the 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 or WESCO, as the Administrative Agentcase 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 or WESCO, as the case may be.
(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 statements, 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 Administrator may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent Seller, WESCO and the Administrator (on behalf of itself, the Purchaser Agents and the Purchaserseach Purchaser) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 Originators, WESCO or the Seller.
(hf) Completed UCC search reports, dated on or shortly before the date of such the initial Purchasepurchase hereunder, listing all effective the financing statements filed in the jurisdiction all applicable jurisdictions referred to in clause SUBSECTION (fe) above that name the Seller Originators or the Originator Seller as debtor, together with copies of such other 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 jurisdictions, as the Administrative Agent Administrator or any Purchaser Agent may request, showing no such liens Adverse Claims on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(ig) Copies of executed Blocked Account Lock-Box Agreements with the Blocked Account Bankseach Lock-Box Bank.
(jh) A favorable opinion of Lily YFavorable opinions, in form and substance reasonably satisfactory to the Administrator and each Purchaser Agent, of: (i) Sidley & Austin, counsel for the Seller, the Originators, WESCO and the Servicer, and (ii) Jeff▇▇▇ ▇▇. ▇▇▇▇▇, corporate ▇▇ternal counsel for the Originator Seller, WESCO 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 requestOriginators.
(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.
(ni) Satisfactory results of a review and audit (performed by the Purchasers representatives of the Seller’s and Administrator) of the Originator’s Servicer's collection, operating and reporting systems, the Credit and Collection PolicyPolicy of each Originator, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s Servicer'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 the Agreement, as confirmed in the agreed upon procedures report prepared by PriceWaterhouseCoopers, L.L.P., and delivered to the Administrator prior to the date hereof.
(oj) Monthly Receivables Report A pro forma Information Package representing the performance of the portfolio of Receivables Pool Receivables for the calendar month prior to the initial Purchasebefore closing.
(pk) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the each Purchaser Group 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, 6.4 of the Agreement and the Fee Letter and the Engagement Letter.
(ql) Each Purchaser Group Fee Letter (received only by the related Purchaser Group Agent) duly executed by the Seller and the Servicer.
(m) Good standing certificates with respect to each of the Seller Seller, the Originators and the Servicer issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware each such Person's organization and Californiaprincipal place of business.
(rn) Good standing certificates with respect to To the Originator issued extent required by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters each Conduit Purchaser's commercial paper program, letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its such Notes after giving effect to the transactions transaction contemplated by this the Agreement.
(uo) Receipt Each Liquidity Agreement (received only by the related Purchaser Group Agent) and satisfactory review of all other Transaction Documents duly executed by the final Protiviti audit reportparties thereto.
(vp) Evidence that A computer file containing all information with respect to the “Liens” created Receivables as the Administrator or any Purchaser Agent may reasonably request. (and q) Such other approvals, opinions or documents 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 or any Purchaser Agent may reasonably request.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco 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 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 is subject Prior to the initial purchase hereunder, the Customer shall deliver to WFB, unless waived by it, the following conditions precedent that the Administrative Agent items and each Purchaser Agent shall have received on or before the date of such Purchasedocuments, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentWFB:
(a) A counterpart of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.Customer;
(b) Certified copies of (i) the resolutions a certificate of an officer of the board of directors Customer and each Subsidiary of the Seller authorizing the execution, delivery, and performance by the Seller Customer containing 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 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 its articles of incorporation and by-laws bylaws, an appropriate resolution of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying its directors, and the names and true signatures of the officers of the Seller authorized to sign 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 party 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, deliverybehalf, 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 an officer of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying Customer containing the names and true signatures of the officers of the Originator authorized to sign all reports and other submissions under this Agreement and the Related Documents on its behalf, on which certificates by the Customer WFB shall be entitled to conclusively rely until such time as WFB receives from the Customer a replacement certificate meeting the requirements of this Section 4.01(b)(i) or (ii), as the case may be;
(c) a certificate of status, good standing or compliance in respect of the Customer issued by its jurisdiction of incorporation and a certificate of status, good standing or compliance in respect of the Customer issued by the appropriate authorities in each jurisdiction in which the Customer is required to be registered in order to conduct its business;
(d) favorable legal opinions of counsel to the Customer;
(e) Certificates of Insurance required under this Agreement, naming WFB as a certificate holder;
(f) a fully executed copy of each of the following: Signed Fax Authorization, Automated Signature Form, IRS Form 8821, FMS Form 13, and CEO Online Access Agreement;
(g) fully executed Guaranties by R▇▇▇▇▇▇ ▇▇▇▇▇▇ and D▇▇ ▇’▇▇▇▇▇;
(h) a fully executed intercreditor or subordination agreement by each holder of Subordinated Seller Indebtedness or Term Loan Indebtedness in favor of WFB and WFCFCC;
(i) fully executed payoff letters from the Customer’s existing senior lenders or factors;
(j) evidence that immediately after giving effect to (A) the initial purchase hereunder and under the Subsidiary Account Purchase Agreement, (B) the payment of all fees due upon the execution of this Agreement and the Subsidiary Account Purchase Agreement, (C) the satisfaction of all obligations owed to the prior senior lenders or factors of the Customer and each Subsidiary Customer, (D) the payment of all trade payables of the Customer and each Subsidiary Customer older than 30 days from invoice date, (E) the payment of all book overdrafts and closing costs of the Customer and each Subsidiary Customer, (F) the net amount of accrued payroll and accrued payroll taxes of the Customer and each Subsidiary Customer less unbilled Accounts (as defined herein and in the Subsidiary Account Purchase Agreement) and (G) the payment or reimbursement by the Customer and each Subsidiary Customer to WFB and WFCFCC for all closing costs and expenses incurred in connection with the transactions contemplated by this Agreement and the other Transaction Related Documents and the Subsidiary Account Purchase Agreement and the other Related Documents (other than as defined 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 AgentSubsidiary Account Purchase Agreement), the Administrative Agent shall be entitled to rely on Customer and each Subsidiary Customer could have sold collectively additional Accounts (as defined herein and in the last such certificate delivered to it by Subsidiary Account Purchase Agreement) in compliance with the Originator.terms hereof and the Subsidiary Account Purchase Agreement with an aggregate face amount of at least $112,000;
(fk) Acknowledgment copies, or time stamped receipt fully executed 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 discharges 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 statementsreleases, if any, necessary to discharge or release all security interests Liens and other rights or interests of any Person (other than the Seller and the Administrative Agent) in the Pool ReceivablesPurchased Accounts, Contracts the Related Rights with respect thereto or Related Security the Collateral 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 debtorCustomer, together with file stamped copies of such the relevant UCC-3 financing statements, and similar search reports with respect to judgment liens, federal tax liens and liens ;
(l) current searches of the Pension Benefit Guaranty Corporation in such jurisdictions as the Administrative Agent or any Purchaser Agent may request, appropriate filing offices showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
that (i) Copies no Liens have been filed and remain in effect against the Customer except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of executed Blocked Account Agreements proceeds of the initial purchase, they will satisfy, release or terminate such Liens in a manner satisfactory to WFB, and (ii) WFB has duly filed all financing statements necessary to perfect its Lien on the Purchased Accounts, the Related Rights with respect thereto and the Blocked Account Banks.Collateral to the extent it is capable of being perfected by filing, and such other similar instruments or documents as may be necessary and, in WFB’s reasonable discretion, advisable under any applicable statute to perfect, record or protect WFB’s interest in the Purchased Accounts, the Related Rights with respect thereto or the Collateral;
(jm) A favorable opinion of Lily Yevidence that Stuart Family Fund, LLC, Triangle Mezzanine Fund, LLLP, Fidus Mezzanine Capital, L.P., Salem Halifax Capital Partners, Limited Partnership and R▇▇ ▇▇▇▇▇▇▇▇, corporate counsel for all current shareholders of the Originator and Customer, have made a cash equity infusion into the SellerCustomer of at least $2,000,000 in the aggregate, addressed which infusion will occur simultaneously with the execution of this Agreement, but 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.
(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.initial purchase hereunder;
(n) Satisfactory results payment of a review by all fees due under the Purchasers terms 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 this Agreement through the date of the initial Purchase purchase and payment of all expenses incurred by WFB and through such date and that are required to be paid by the Customer under this Agreement.;
(o) Monthly Receivables Report representing evidence that all conditions precedent to the performance consummation of the portfolio of Pool Receivables for the month prior to the initial Purchase.Subsidiary Account Purchase Agreement have been satisfied or waived by WFCFCC; and
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter)such other approvals, 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 opinions or on such date, plus such additional amounts of Attorney Costs documents 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 WFB in Section 6.4, the Fee Letter and the Engagement Letterits sole discretion may require.
(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: Account Purchase Agreement (Cypress Energy Partners, L.P.)
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 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 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 Amended and Restated Receivables Purchase Agreement and the initial Purchase 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 SCI approving this Agreement and the other Transaction Agreement Documents duly executed and to be delivered by it hereunder and the parties thereto.
(b) Certified copies transactions contemplated hereby, certified on behalf of (i) SCI by SCI's Secretary or Assistant Secretary; a copy of the resolutions of the board Board of directors Directors of the Seller authorizing the execution, delivery, and performance by the Seller of Guarantor approving this Agreement and the other Transaction Agreement Documents (other than the Ancillary 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 transactions contemplated hereby, certified on behalf of Guarantor by Guarantor's Secretary or Assistant Secretary; a party and (iii) the certificate of incorporation and by-laws copy of the Seller.resolutions of the Board of Directors of SCI Colorado approving the Agreement Documents to be delivered by it and the transactions contemplated thereby, certified on behalf of SCI Colorado by SCI Colorado's Secretary or Assistant Secretary;
(c) A good standing certificate for Seller issued by the Secretary of State of Alabama; good standing or foreign qualification certificates for SCI issued by the Secretaries of State of Alabama, California, Colorado, New Hampshire, North Carolina, Maine and South Dakota; good standing or foreign qualification certificates for Guarantor issued by the Secretaries of State of Delaware and California; and a good standing certificate for SCI Colorado issued by the Secretary of State of Colorado;
(d) A certificate of the Secretary or Assistant Secretary of the Seller each of Seller, SCI, SCI Colorado 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 in form and substance SCI, SCI Colorado 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, SCI, SCI Colorado or Guarantor, as the case may be, was organized, as of a recent date, together with a copy of the By-laws of Seller, SCI, SCI Colorado and Guarantor, duly certified on behalf of such Person by the Secretary or an Assistant Secretary of Seller, SCI, SCI Colorado 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 date of the last such certificate delivered to it by the Seller.
(d) Certified copies of initial Purchase hereunder naming (i) each of SCI Colorado and SCI, respectively, as the resolutions debtor and seller of Receivables, Seller as 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 secured party and (iii) the certificate of incorporation purchaser 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, for the benefit of Purchaser, as assignee and (ii) Seller as the debtor and seller of Receivables or an undivided interest therein and the Administrative Agent shall be entitled to rely on Agent, for the last such certificate delivered to it by benefit of Purchaser, as the Originator.
(f) Acknowledgment copiessecured party and purchaser, or time stamped receipt copies other, similar instruments or documents, as may be necessary or, in the reasonable opinion of proper financing statementsthe Administrative Agent, duly filed on or before the date of such initial Purchase desirable under the UCC or any comparable law of all appropriate jurisdictions that to perfect the Administrative Agent and each Purchaser Agent may deem necessary Agent's interests in all Undivided Interests assigned to it 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.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 (except by the Lock-Box Bank) 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 and the Seller, addressed to SCI, SCI Colorado and Guarantor, in substantially the Administrative Agentforms of Exhibits 5.01(j)-1, each Purchaser5.01(j)-2 and 5.01(j)-3, 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 a favorable opinion of D▇▇▇▇▇▇▇ ▇. ▇▇▇ & W▇▇▇▇▇▇▇, Esq., in-house counsel for the Seller Seller, SCI, SCI Colorado and the OriginatorGuarantor, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser in substantially in the form of Annex G Exhibit 5.01(j)-4 and as to such other matters a favorable opinion of special Alabama counsel, in substantially the form of Exhibit 5.01(j)-5;
(k) The Second Tier Sale Agreement, duly executed by the parties thereto;
(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 & 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.most recent Month End Date; and
(n) Satisfactory results of a review The Parallel Purchase Agreement, 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 Agreementparties thereto.
(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 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.
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 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 of the Board of Directors of the Seller approving, and evidence that each Originator has taken any necessary corporate action to authorize, this Agreement and the other Transaction Documents duly executed Originator Purchase Agreement and delivered by the parties thereto.
(b) Certified 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 SellerOriginator Purchase Agreement.
(cb) A certificate of the Secretary or Assistant Secretary of the Seller and each Originator certifying the names and true signatures of the officers of the Seller and the Originators authorized to sign the Originator Purchase Agreement and this Agreement and the other Transaction Documents (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.
(fc) Acknowledgment copies, copies or time stamped receipt copies of proper financing statements, 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 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, 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 Originator Seller or the Originators and (ii) the collateral security referred to in Section 2.10 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 that name the Seller or the an 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 2.10).
(if) Copies Executed copies of executed Blocked Account Lock-Box Agreements with the Blocked Account Bankseach Lock-Box Bank.
(jg) A favorable opinion of Lily YSquire, Sanders & Dempsey L.L.P., counsel for the Seller and the Originator▇▇ , ▇▇▇▇tan▇▇▇▇▇▇▇, 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 C hereto and as to such other matters as the Administrative Agent may reasonably request.
(h) The Fee Agreement.
(i) A Drawdown Notice.
(j) The Undertaking Agreement, duly executed by Ferro Corporation.
(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 requestPurchase 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 Agentgood standing of the Seller from such Secretary of State or other official, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form dated as of Annex H and as to such other matters as the Administrative Agent may reasonably requesta recent date.
(n) Satisfactory results A favorable opinion of a review by the Purchasers of the Seller’s and the Originator’s collectionKaye, operating and reporting systemsScholer, Credit and Collection PolicyFierman, historical receivables data and accountsHays & Handler, 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 LLP, counsel for the month prior Agent, ▇▇ to the initial Purchasesuch matters as t▇▇ ▇gent may reasonably request.
(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 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 Effectiveness of this Agreement is amendment and restatement embodied in this Agreement, and the initial purchase of a Receivable Interest under this Agreement, are 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 of this Agreement and the other Transaction Documents duly executed Assignment and delivered by Acceptance with respect to the parties thereto.Existing Agreement,
(b) Certified copies of (i) the resolutions (or similar authorization, if not a corporation) of the board Board of directors Directors (or similar governing body or Persons, if not a corporation) of the Seller authorizing and the executionOriginators approving this Agreement, deliverythe Secondary Purchase Agreement, and performance by the Seller of this Initial 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 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.
(c) 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 (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 Acknowledgment copies of (i) the resolutions of the board of directors (or its designated committee) other evidence 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 filing 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.
(ge) 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.
(hf) 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 statementsstatements (none of which shall cover any Receivables, Contracts, Related Security or the collateral security referred to in Section 2.11).
(g) Duly executed copies of all Deposit Account Control Agreements and similar search reports all necessary amendments thereto and assignments thereof.
(h) Favorable opinions or reliance and reaffirmation letters with respect to judgment liensfavorable opinions of Skadden, federal tax liens Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Seller and liens the Originators, and 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 YR▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, corporate counsel for General Counsel of the Originator and the SellerParent, addressed to the Administrative Agent, 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.
(i) A duly executed copy of the Fee Agreement.
(j) A duly executed copy of the (i) Initial Purchase Agreement and (ii) the Secondary Purchase Agreement, together with all amendments to each of the foregoing.
(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 or Assistant Secretary of the Seller and each Originator, 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 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) Payment of the Commitment Fee as set forth in the Fee Agreement.
(o) Payment of all other related costs and expenses (including costs and expenses related to the Audit described in clause (p) below and all reasonable attorney’s fees and costs) incurred by the Agent and/or the Banks as of the date hereof.
(p) Satisfactory results of a review by the Purchasers and audit 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 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 within 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.Annex H.
(q) Good standing certificates with respect to the Seller issued by the Secretaries A Monthly Report as of the States of Delaware and CaliforniaMarch 31, 2014.
(r) Good standing certificates with respect to Such other approvals, opinions or documents as the Originator issued by the Secretaries of the States of Delaware and CaliforniaAgent 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
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 this Agreement is subject Prior to the initial purchase hereunder, the Customer shall deliver to WFBC, unless waived by it, the following conditions precedent that the Administrative Agent and each Purchaser Agent shall have received on or before the date of such Purchasedocuments, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentWFBC:
(a) A counterpart an executed copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.Agreement;
(b) Certified copies of (i) the resolutions a certificate of an officer of the board Customer containing a copy of directors its certificate of the Seller authorizing the executionformation and limited liability company agreement, deliveryan appropriate resolution of its managers, 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 Related 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, deliverybehalf, 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 an officer of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying Customer containing the names and true signatures of the officers of the Originator authorized to sign all reports and other submissions under this Agreement and the other Transaction Related Documents (other than the Ancillary Documents) to on its behalf, on 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 certificates WFBC shall be entitled to conclusively rely on until such time as WFBC receives from the last such Customer a replacement certificate delivered to it meeting the requirements of this Section 4.01(b)(i) or (ii), as the case may be;
(c) a certificate of status, good standing or compliance in respect of the Customer issued by its jurisdiction of incorporation and a certificate of status, good standing or compliance in respect of the Customer issued by the Originator.
(f) Acknowledgment copies, or time stamped receipt copies of proper financing statements, duly filed on or before appropriate authorities in each jurisdiction in which 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 Customer is required to be registered in order to perfect (with conduct its business, except to the extent that failure to do so would not reasonably be expected to have 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.Material Adverse Effect;
(gd) Acknowledgment copiesCertificates of Insurance required under this Agreement, or time stamped receipt naming WFBC as a certificate holder;
(e) executed copies of proper terminations of financing statementsall discharges and releases, if any, necessary to discharge or release all security interests Liens and other rights or interests of any Person (other than the Seller and the Administrative Agent) in the Pool ReceivablesPurchased Accounts, Contracts the Related Rights or Related Security the Collateral previously granted by the Originator or Customer, other than Permitted Liens, together with file stamped copies of the Seller.relevant UCC-3 financing statements;
(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 current searches of appropriate filing offices showing that name (i) no Liens have been filed and remain in effect against the Seller or the Originator as debtor, together with copies of such financing statements, and similar search reports Customer with respect to judgment liens, federal tax liens and liens the Collateral except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of proceeds of the Pension Benefit Guaranty Corporation initial purchase, they will satisfy, release or terminate such Liens in a manner satisfactory to WFBC, and (ii) WFBC has duly filed all financing statements necessary to perfect its Lien on the Purchased Accounts, the Related Rights and the Collateral to the extent it is capable of being perfected by filing, and such jurisdictions other similar instruments or documents as may be necessary and, in WFBC’s reasonable discretion, advisable under any applicable statute to perfect, record or protect WFBC’s interest in the Administrative Agent Purchased Accounts, the Related Rights or any Purchaser Agent may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts or Related Security.Collateral;
(ig) Copies payment of executed Blocked Account Agreements with all fees due under the Blocked Account Banks.
(j) A favorable opinion terms 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 this Agreement through the date of the initial Purchase purchase and payment of all expenses incurred by WFBC and through such date and that are required to be paid by the Customer under this Agreement.; and
(oh) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior to the initial Purchasesuch other approvals or documents as WFBC in its sole discretion may require.
(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: Account Purchase Agreement (Broadwind Energy, Inc.)
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 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 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 and 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 of the Board of Directors of each of the Seller, the Servicer and the Sub-Servicer approving this Agreement Agreement, the Purchase and Sale Agreement, if applicable, the other Transaction Documents duly executed to which each of them is a party and delivered by the parties thereto.
(b) Certified any other documents contemplated thereby and 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 Agreement, the Purchase and Sale Agreement, the other Transaction Documents (and any other than the Ancillary Documents) to which it will be a party and (iii) the certificate of incorporation and by-laws of the Seller.documents contemplated thereby;
(cb) A certificate of the Secretary or Assistant Secretary of each of the Seller Seller, the Servicer and the Sub-Servicer certifying the names and true signatures of the officers of the Seller and the Servicer authorized to sign the Purchase and Sale Agreement, if applicable, this 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 connection herewith 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.therewith;
(dc) 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 Proper financing statements, duly filed on or before the date of such initial Purchase statements 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 Purchase and Sale Agreement and the Purchasers) contemplated by the Agreement Purchase and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Contribution Agreement.;
(gd) 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, any Contracts related thereto or any Related Security related thereto previously granted by the Originator Seller, HomePride SPV or the Seller.HomePride;
(he) Completed UCC search reportsrequests for information, dated on or shortly before the date of such initial Purchase, listing all effective financing statements filed in the with respect to each jurisdiction referred to in clause subsection (fc) above that name the Seller Seller, HomePride SPV or the Originator HomePride as debtor, together with copies of such other 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, any Contracts related thereto or any Related Security.Security related thereto or any collateral referred to in Section 10.01);
(f) Favorable Opinions of Counsel in form and substance satisfactory to the Agent, with respect to, among other things, the due authorization, execution and delivery of, and enforceability of this Agreement and the other Transaction Documents;
(g) A favorable Opinion of Counsel, in form and substance satisfactory to the Agent, to the effect that (i) the Receivables to be conveyed to HomePride SPV under the Purchase and Contribution Agreement will be conveyed to HomePride SPV in a "true sale" and would not be considered part of HomePride's bankruptcy estate in the event of its insolvency and (ii) HomePride SPV would not be substantially consolidated with HomePride for purposes of the Federal Bankruptcy Code in such event;
(h) A favorable Opinion of Counsel, in form and substance satisfactory to the Agent, to the effect that the Seller would not be substantially consolidated with Seller's Parent for purposes of the Federal Bankruptcy Code in such event;
(i) Copies A favorable Opinion of executed Blocked Account Agreements Counsel, in form and substance satisfactory to the Agent with respect to, among other things, there being no material conflicts between the Blocked Account Banks.Transaction Documents and the 1999 Indenture or the 2002 Indenture;
(j) A favorable opinion Favorable Opinions of Lily YCounsel, ▇▇ ▇▇▇▇ ▇▇▇ ▇▇ubstance satisfactory to the Agent, corporate counsel for with respect to the Originator creation, perfection and priority of ownership interests and, in the alternative, security interests in the Transferred Receivables, Related Security and Collections under the Purchase and Sale Agreement (as such terms are defined in the Purchase and Sale Agreement), the Transferred Receivables, Related Security and Collections under the Purchase and Contribution Agreement (as such terms are defined in the Purchase and Sale Agreement) and the SellerPool Receivables, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent Related Security and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably request.Collections under this Agreement;
(k) A favorable opinion Opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, Counsel from special counsel for the Originator Seller, with respect to the first priority perfected security interest of the Agent in the Collection Account, the Excess Collections Account 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.Reserve Account;
(l) A favorable opinion Opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇Counsel, counsel for in form and substance satisfactory to the Agent, which shall address (i) certain regulatory and licensing issues related to the (a) ownership of the Receivables and Related Security by HomePride, HomePride SPV and the Seller and (b) the Originatorservicing of the Receivables by the Servicer and (ii) the exemption of the Agent, addressed Investors and Banks from federal, state and local licensing requirements with respect to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in transactions contemplated by the form of Annex G and as to such other matters as the Administrative Agent may reasonably request.Transaction Documents;
(m) A favorable opinion Opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇, Counsel from special Delaware Texas counsel for the Originator Seller satisfactory to the Agent, in form and substance satisfactory to the Agent, with respect to the first priority, perfected, possessory security interest in the Contracts;
(n) A copy of the by-laws of the Seller, addressed the Servicer and the Sub-Servicer certified by the Secretary or Assistant Secretary of the Seller, the Servicer or the Sub-Servicer, as applicable;
(o) A copy of the certificate or articles of incorporation of the Seller, the Servicer and the Sub-Servicer, 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 Agentgood standing of the Seller, the Servicer and the Sub-Servicer from such Secretary of State or other official, dated as of a recent date;
(p) The Agent (or its counsel) shall have received from each Purchaser, party to the Fee Letter either (i) an original counterpart of the Fee Letter signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Fee Letter) that such party has signed a counterpart of the Fee Letter;
(q) The Agent (or its counsel) shall have received from each Purchaser party to the Purchase and Sale Agreement either (i) an original counterpart of the Purchase and Sale Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Purchase and Sale Agreement) that such party has signed a counterpart of the Purchase and Sale Agreement;
(r) The Agent (or its counsel) shall have received from each party to the Purchase and Contribution Agreement either (i) an original counterpart of the Purchase and Contribution Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Purchase and Contribution Agreement) that such party has signed a counterpart of the Purchase and Contribution Agreement;
(s) The Agent (or its counsel) shall have received from each party to the Custodial Agreement either (i) an original counterpart of the Custodial Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Custodial Agreement) that such party has signed a counterpart of the Custodial Agreement;
(t) The Agent (or its counsel) shall have received from the Parent (i) an original counterpart of the Parent Guaranty signed on behalf of the Parent or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Parent Guaranty) that the Parent has signed a counterpart of the Parent Guaranty;
(u) The Agent (or its counsel) shall have received from the Parent (i) an original counterpart of the Limited Recourse Guaranty signed on behalf of the Parent or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Limited Recourse Guaranty) that the Parent has signed a counterpart of the Limited Recourse Guaranty;
(v) The Agent (or its counsel) shall have received from CIT (i) an original counterpart of the CIT Guaranty signed on behalf of CIT or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the CIT Guaranty) that CIT has signed a counterpart of the CIT Guaranty;
(w) The Agent (or its counsel) shall have received the Global Servicing Agreement in form and substance satisfactory to the Agent and from each Alternate Purchaser substantially party thereto either (i) an original counterpart of the Global Servicing Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Global Servicing Agreement) that such party has signed a counterpart of the Global Servicing Agreement;
(x) The Agent (or its counsel) shall have received the Control Agreement in form and substance satisfactory to the Agent and from each party thereto either (i) an original counterpart of the Control Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Control Agreement) that such party has signed a counterpart of the Control Agreement;
(y) The Agent (or its counsel) shall have received from the Seller (i) an original counterpart of the Funds Transfer Letter signed on behalf of the Seller or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of the Funds Transfer Letter) that the Seller has signed a counterpart of the Funds Transfer Letter;
(z) The Agent (or its counsel) shall have received this Agreement and all other Transaction Documents required to be delivered on the date hereof, in each case, in form and substance satisfactory to the Agent and from each party thereto either (i) an original counterpart thereof signed on behalf of Annex H such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page thereof that such party has signed a counterpart thereof.
(aa) A Responsible Officer of the Seller shall have certified that all conditions to the obligations of HomePride and as the Seller under the Purchase and Sale Agreement shall have been satisfied in all respects and a copy of all documents delivered thereunder shall be delivered to such the Agent and shall be reasonably satisfactory to the Agent;
(bb) A Responsible Officer of HomePride shall have certified that all conditions to the obligations of HomePride and HomePride SPV under the Purchase and Contribution Agreement shall have been satisfied in all respects and a copy of all documents delivered thereunder shall be delivered to the Agent and shall be reasonably satisfactory to the Agent;
(cc) A Responsible Officer of HomePride shall have certified that all conditions to the obligations of HomePride and CIT Group/Sales under the Global Servicing Agreement shall have been satisfied in all respects and a copy of all documents delivered thereunder shall be delivered to the Agent and shall be reasonably satisfactory to the Agent;
(dd) A copy of the Credit and Collection Policy, certified by a Responsible Officer of the Seller;
(ee) A review of the computer programs, material tapes, data and back-up plans of Sub-Servicer, HomePride, HomePride SPV and the Seller required for the collection of Receivables and the Agent shall be satisfied that the foregoing, including the procedures of Sub-Servicer, HomePride, HomePride SPV and the Seller for the preparation, storage and retrieval thereof, are sufficient upon the termination of the Servicer or the Sub-Servicer to permit (i) the Seller or the Agent to collect the Receivables with or without the participation of HomePride, HomePride SPV or the Sub-Servicer and the Seller or the Servicer and (ii) a third-party servicer to collect the Receivables with or without the participation of HomePride, HomePride SPV, the Servicer, the Sub-Servicer or the Seller; and
(ff) Such other matters documents, instruments, certificates and opinions 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 (Champion Enterprises Inc)
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 shall have received that, as applicable, on or before the date of such PurchaseClosing Date, 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, following shall have been completed or occurred 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 the Purchaser shall have received the following documents evidencing other necessary corporate action and governmental approvalsmaterials, if anyeach (unless otherwise indicated) dated the Closing Date, 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 each 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.Purchaser:
(da) Certified copies of evidence (i) of the execution and delivery by each of the parties thereto of this Agreement, the Fee Letter, the Release, and any other Transaction Document to be executed and delivered in connection herewith on or prior to the Closing Date and (ii) that the form of Specification and form of Reconciliation Report have been mutually agreed by Kyndryl and Purchaser;
(b) the payment of all fees and expenses, as specified in the Fee Letter (defined below), required to be paid on or before the Closing Date;
(c) executed certificates (i) from the secretary or assistant secretary of each Seller and the Parent, together with all applicable attachments, certifying as to the following: (A) attached thereto is a copy of each organizational document of such Person and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Closing Date or a recent date prior thereto; (B) set forth therein are the signature and incumbency of the officers or other authorized representatives of such Person executing the Transaction Documents; and (C) attached thereto are copies of resolutions of the board of directors (or its designated committeeother governing body) of the Seller such Person approving and Servicer authorizing the execution, delivery, delivery and performance by the Seller and Servicer of this Agreement and the other Transaction Documents Documents, certified as of the Closing Date as being in full force and effect without modification or amendment and (ii) from an authorized senior officer of each Seller and the Parent, certifying as to the accuracy of the representations and warranties set forth herein with respect to such Person, the solvency of such Person and other than closing matters;
(d) a good standing certificate (or equivalent) from the Ancillary Documentsapplicable governmental authority of the Seller’s and Parent’s jurisdiction of organization, dated a recent date prior to the Closing Date;
(e) solely for the benefit of Purchaser (and without any copy thereof being provided to which it will Parent, Seller or any of their Affiliates), a legal opinion of counsel to Purchaser with respect to the enforceability of this Agreement under New York Law, subject to customary assumptions, qualifications and exceptions;
(f) the completion by the Purchaser of its due diligence investigations, including, without limitation a satisfactory review, as determined by the Purchaser, of (i) the contemplated Receivables to be a partysold, (ii) all documents evidencing the Contracts and Ancillary Rights, (iii) any Accepted Guaranty, Accepted Letter of Credit or other applicable credit enhancement arrangements or credit support (from a parent company of any Obligor or any third party) supporting payment of any such Receivable, and (iv) information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(g) the completion of searches commercially reasonable to request and obtain and such financing statements, notices or other actions necessary corporate to vest Purchaser with full title to the Purchased Receivables free and shareholder action clear of any Adverse Claim shall have been filed or taken in each applicable jurisdiction;
(h) to the extent not publicly available, satisfactory (i) audited financial statements of Parent and governmental approvals, if any, with respect (ii) such other information reasonably related to the transactions contemplated by 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, as the Purchaser Agents and the Purchasers) contemplated by the Agreement and may, from time to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(g) Acknowledgment copiestime, 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 reasonably request with respect to judgment liens, federal tax liens Kyndryl 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.other Seller:
(i) Copies evidence of executed Blocked Account Agreements with the Blocked Account Banks.filing of such UCC financing statements or other filings as are required hereunder; 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 requestno Material Adverse Change shall have occurred.
(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 (Kyndryl Holdings, Inc.)
Conditions Precedent to Initial Purchase. The initial This Amended and Restated Trade Receivables Purchase after effectiveness of this and Sale Agreement is subject to shall become effective upon, and only upon, 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 's receipt of (i) the resolutions of the board of directors of the Seller authorizing the execution, delivery, and performance by the Seller counterparts of this Agreement executed by the Seller, the Collection Agent, the Investor and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partyAgent, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement payment of the "Administrative Fee" and the other Transaction Documents -26- 27 "Investor Investment Fee" under and as defined in the Original Seller Agreement, accrued to and including the Effective Date (other than the Ancillary Documents) to which it will be a party as defined below), and (iii) the certificate following, each (unless otherwise indicated) dated, or dated as of incorporation and by-laws of or effective as of, February 12, 1997 (such date being 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 "Effective Date"), in form and substance satisfactory to the Administrative Agent:
(a) The Certificate, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it executed by the Seller.;
(db) Certified copies of The Contribution and Sale Agreement, duly executed by Dial and the Seller, together with:
(i) Proper financing statements (Form UCC-1) naming Dial, as seller, the resolutions Seller, as purchaser, and the Agent, as assignee, to be filed within 10 days following the Effective Date, or other similar instruments or documents, as may be necessary or, in the opinion of the board Agent, desirable under the UCC of directors (all appropriate jurisdictions or its designated committee) of any comparable law to perfect the Seller and Servicer authorizing the execution, delivery, and performance Seller's interests created or purported to be created by the Seller Contribution and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party, Sale Agreement;
(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 Acknowledgment copies 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 Financing Statements (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 statementsForm UCC-3), if any, necessary to release all security interests and other similar rights of any Person (other than the Seller and the Administrative Agent) in the Pool Receivables, Related Security, Collections or Contracts or Related Security previously granted by the Originator or the Seller.Dial;
(hiii) Completed UCC search reportsrequests for information, dated on or shortly before a date reasonably near to the date of such initial PurchaseEffective Date, listing all effective financing statements which name Dial (under its present name and any previous names) as debtor or seller and which are filed in the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fc)(i) above that name the Seller or the Originator as debtor(c)(ii) above, together with copies of such financing statementsstatements (none of which, except those filed pursuant to subsection (c)(i) above and similar search reports except those filed pursuant to the Original Seller Agreement, shall cover any Receivables, Related Security, Collections or Contracts); and
(iv) The Consent and Agreement with respect hereto and to judgment liensthe Certificate, 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 Participant Agreement and the Seller"Certificate" thereunder, 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 requestduly executed by Dial.
(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 (Dial Corp /New/)
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 Initial Purchase after effectiveness of under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received on or before the date of such Purchasepurchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart of this the 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 authorizing Seller, the Originator and Wern▇▇ ▇▇▇horizing the execution, delivery, delivery and performance by the Seller Seller, Originator and Wern▇▇, ▇▇ the case may be, of this the 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 the 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 and Wern▇▇.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying Seller, Originator and Wern▇▇ ▇▇▇tifying the names and true signatures of the its officers of the Seller who are authorized to sign this the Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent Administrator receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to Seller, Originator or Wern▇▇, ▇▇ the Administrative Agentcase may be, the Administrative Agent Administrator shall be entitled to rely on the last such certificate delivered to it by the Seller, Originator or Wern▇▇, ▇▇ the case may be.
(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 statements, 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 Administrator may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itselfSeller, Wern▇▇ ▇▇▇ the Purchaser Agents and the Purchasers) Issuer contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 Originator, Wern▇▇ ▇▇ the Seller.
(hf) Completed UCC search reports, dated on or shortly before the date of such the initial Purchasepurchase hereunder, listing all effective the financing statements filed in the jurisdiction all applicable jurisdictions referred to in clause SUBSECTION (fe) above that name the Seller Originator or the Originator Seller as debtor, together with copies of such other 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 jurisdictions, as the Administrative Agent or any Purchaser Agent Administrator may request, showing no such liens Adverse Claims 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 (Werner Holding 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 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 Company as the buyer/assignor (and the Administrator, 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 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 has been assigned to it hereunder;
(f) A written search report from a Person satisfactory to the Ancillary DocumentsCompany and the Administrator (as the Company’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 it will are to be sold to the Company hereunder), and tax and judgment lien search reports from a party. Until Person satisfactory to the Administrative Agent receives a subsequent incumbency certificate from Company showing no evidence of such liens filed against any Originator;
(g) A favorable opinion of King & Spalding LLP, counsel to the Originator Originators, in form and substance satisfactory to the Administrative AgentCompany, 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 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 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 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.Company;
(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 in connection herewith and (ii) that each of the Blocked Account Banks.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) satisfaction; and
(j) A favorable opinion certificate from an officer of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the 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 effect that 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 has placed on the date of most recent, and has 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 FLEETCOR FUNDING LLC PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 20, 2004, BETWEEN THE ORIGINATORS NAMED THEREIN AND FLEETCOR FUNDING 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 DECEMBER 20, 2004, AMONG FLEETCOR FUNDING LLC, FLEETCOR TECHNOLOGIES OPERATING COMPANY, LLC, AS INITIAL SERVICER, THE VARIOUS PURCHASERS AND PURCHASER AGENTS FROM TIME TO TIME PARTY THERETO AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR.
(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 (Fleetcor Technologies 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) 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 from any Originator upon the 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, Purchase the Company shall have received from such Originator each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentCompany:
(a) A counterpart of this Agreement and the other Transaction Documents to which such Originator is a party duly executed and delivered by the parties thereto.;
(b) Certified copies of (i) the resolutions of the board governing body of directors of the Seller such Originator authorizing the execution, delivery, and performance by the Seller it 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 organizational documents of incorporation and by-laws of the Seller.such Originator;
(c) A certificate of the Secretary or Assistant Secretary of the Seller such Originator certifying the names and true signatures of the officers of the Seller such 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 Company receives a subsequent incumbency certificate from the Seller such Originator in form and substance satisfactory to the Administrative AgentCompany, the Administrative Agent Company shall be entitled to rely on the last such certificate delivered to it by the Seller.Originator;
(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, Good standing certificates with respect to this Agreement and such Originator issued by 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 of the Seller and Originator.jurisdiction of its organization;
(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 Company may deem necessary or desirable in order to perfect (with a first priority) the interests of the Company contemplated by this Agreement and the interests of the Administrative Agent (on behalf of itselfAgent, the Purchaser Agents and the PurchasersPurchasers under the Receivables Purchase Agreement;
(f) contemplated by Monthly Receivables Report representing the Agreement and to perfect (with a first priority) the interests performance of the Seller as contemplated portfolio of Receivables originated by it for the Receivables Sale Agreement.fiscal month prior to the initial Purchase;
(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 (fe) above that name the Seller or the such 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 Company may request, showing no such liens on any of the Pool Assets, Pool Receivables, Contracts Receivables or Related Security.Assets;
(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.
(nh) Satisfactory results of a review by the Purchasers Company of the Seller’s and the such 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 its operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreement.; and
(oi) Monthly Receivables Report representing Copies of executed Blocked Account Agreements with the performance of the portfolio of Pool Receivables for the month prior to the initial PurchaseBlocked Account Banks.
(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 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 corporate 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 (attached and appropriately certified by the Secretary of State of the Seller's and each Originator's jurisdiction of incorporation) 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) that all Receivables and all proceeds thereof are free and clear of liens, dated on or shortly before security interests, claims and encumbrances other than those held by the date of such initial Purchase, listing all effective financing statements filed in Purchasers and the jurisdiction referred to in clause Secondary Purchasers.
(e) An executed Transfer Agreement and Consent and Acknowledgment from each Originator.
(f) above that name the Seller or the Originator as debtor[Notices, together with copies of such financing statements, in form 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 substance satisfactory to the Administrative AgentSecondary Purchasers, 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 Lock-Box Banks with respect to the Seller issued by the Secretaries interest 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 Purchasers in the GE Receivables Funding Agreement) have been paid in full and all obligations of the Seller and the Servicer thereunder have been terminatedReceivables.]
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
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 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.such Originator;
(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 respective 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 Originator;
(c) Good standing certificates for each Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the jurisdiction of such Originator's incorporation and the jurisdiction where 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 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 each Originator, duly certified by the Secretary of State of the Originator authorized jurisdiction of such Originator's incorporation as of a recent date acceptable to sign this Agreement and Servicer, 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 the proper financing statementsstatements (Form UCC-1) that have been duly executed and name each Originator as the assignor and the Company as the assignee (and the Issuer), duly filed on as assignee of the Company) of the Receivables generated by such 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 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 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 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 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▇▇ ▇▇▇▇▇▇▇, 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 the Originator Originators, in form and substance satisfactory to 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 Agent, each Purchaser, each Purchaser Agent effect that Servicer and each Alternate Purchaser substantially in Originator have placed on the form of Annex F most recent, and as have taken all steps reasonably necessary to such other matters as the Administrative Agent may reasonably request.
(l) A favorable opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ensure that there shall be placed on each subsequent, 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 FIRST BRANDS FUNDING INC.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California, PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF JUNE 5,1998, AMONG FIRST BRANDS CORPORATION, THE ORIGINATORS NAMED THEREIN AND FIRST BRANDS FUNDING INC.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO MARKET STREET FUNDING CORPORATION PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF JUNE 5,1998, AMONG FIRST BRANDS FUNDING INC.
(s) An executed Receivables Sale Agreement, FIRST BRANDS CORPORATION, MARKET STREET FUNDING CORPORATION AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR.
(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) reasonably satisfactory to the Administrative Agent Company and the Administrator (as the Company’s assignee) and each Purchaser Agent:
(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 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 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 Agent 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 be entitled to rely on receive from such Person a revised certificate meeting the last requirements of this paragraph (c));
(d) The certificate or articles of incorporation or other organizational document of each Originator, together with a copy of the by-laws of such certificate delivered to it Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator.;
(fe) Acknowledgment copies, or time stamped receipt copies Originals of the proper financing statementsstatements (Form UCC-1) that have been duly authorized and name each Transferor as the debtor/seller and the Company as the buyer/assignor (and the Administrator, duly filed on or before for the date benefit of the Purchasers, as secured party/assignee) of the Receivables generated by such initial Purchase Transferor as may be necessary 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 Transferors 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, as applicable, to the Company hereunder), and similar tax and judgment lien search reports with respect from a Person satisfactory to judgment liensthe Company showing no evidence of such liens filed against any Transferor;
(g) A Company Note in favor of each Originator, federal tax liens and liens duly executed by the Company;
(h) Evidence (i) of the Pension Benefit Guaranty Corporation execution and delivery by each of the 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 execution, delivery and effectiveness of such jurisdictions other Transaction Documents has been satisfied to the Company’s and the Administrator’s (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 assignee) satisfaction; and
(i) Copies A certificate from an officer of executed Blocked Account Agreements with each Originator to the Blocked Account Banks.
effect that such Originator has posted at the financial reporting offices of such Originator a legend reasonably acceptable to the Company and the Administrator indicating that the Receivables described therein have been sold to the Company pursuant to this Agreement and that an interest in the same Receivables has been granted to the Administrator (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 benefit 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 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 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 Initial Purchase after effectiveness of under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received on or before the date of such Purchasepurchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart of this the Agreement and the other Transaction Documents duly executed and delivered by the parties thereto; provided that no Lock-Box Agreement need be delivered before the applicable Lock-Box Date.
(b) Certified copies of of: (i) the resolutions of the board Board of directors Directors of each of the Seller and Lesco authorizing the execution, delivery, delivery and performance by the Seller and Lesco, as the case may be, of this the 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 or organizational action and governmental approvals, if any, with respect to this the 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 SellerSeller and Lesco.
(c) A certificate of the Secretary or Assistant Secretary of the Seller and Lesco certifying the names and true signatures of the its officers of the Seller who are authorized to sign this the Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent Administrator receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to or Lesco, as the Administrative Agentcase may be, the Administrative Agent Administrator shall be entitled to rely on the last such certificate delivered to it by the SellerSeller or Lesco, as the case may be.
(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 statements, 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 Administrator may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itselfSeller, the Purchaser Agents Originator and the Purchasers) Issuer contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies copies, of proper terminations of financing statements, if any, necessary or desirable in the Administrator's sole discretion 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.
(hf) Completed UCC search reports, dated on or shortly before the date of such the initial Purchasepurchase hereunder, listing all effective the financing statements filed in the jurisdiction all applicable jurisdictions referred to in clause subsection (fe) above that name the Seller Originator or the Originator Seller as debtor, together with copies of such other 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 jurisdictions, as the Administrative Agent or any Purchaser Agent Administrator may request, showing no such liens Adverse Claims on any of Pool Assets (other than Adverse Claims terminated by the Pool Assetsfinancing statements referred to in subsection (e) above). 43
(g) Favorable opinions, Pool Receivablesin form and substance reasonably satisfactory to the Administrator, Contracts or Related Security.
of: (i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily YBake▇ & ▇▇ ost▇▇▇▇▇▇▇, 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 Lesco, and (ii) Clemente, Muel▇▇▇ & ▇obi▇, ▇.A., special New York counsel for the Originator, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent Seller and each Alternate Purchaser substantially in the form of Annex G and as to such other matters as the Administrative Agent may reasonably requestLesco.
(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.
(nh) Satisfactory results of a review and audit (performed by the Purchasers representatives of the Seller’s and Administrator) of the Originator’s Servicer's collection, operating and reporting systems, the Credit and Collection PolicyPolicy of the Originator, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s Servicer'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 the Agreement.
(oi) Monthly Receivables Report A pro forma Information Package representing the performance of the portfolio of Receivables Pool Receivables for the calendar month prior to the initial Purchasebefore closing.
(pj) 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, 5.4 of the Agreement and the Fee Letter and the Engagement Letter.
(qk) The Fee Letter duly executed by the Seller and the Servicer.
(l) Good standing certificates with respect to each of the Seller and Lesco issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware each such Person's organization or formation and Californiaprincipal place of business.
(rm) Good standing certificates The Liquidity Agreement and all other Transaction Documents duly executed by the parties thereto.
(n) A computer file containing all information with respect to the Originator issued by Receivables as the Secretaries of Administrator or the States of Delaware and CaliforniaIssuer may reasonably request.
(so) An executed Receivables Sale AgreementSuch other approvals, opinions or documents as the Administrator or the Issuer 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 Initial Purchase after effectiveness of under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received on or before the date of such Purchasepurchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart of this the 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 and Peabody authorizing the execution, delivery, delivery and performance by the Seller Seller, the Originators and Peabody, as the case may be, of this the 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 or organizational action and governmental approvals, if any, with respect to this the 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 limited liability company agreement, as applicable, of the Seller, the Originators and Peabody.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, each of the Originators and Peabody certifying the names and true signatures of the its officers of the Seller who are authorized to sign this the Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party. Until the Administrative Agent Administrator receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentSeller, the Administrative Agent Originators or Peabody, as the case may be, the Administrator shall be entitled to rely on the last such certificate delivered to it by the Seller, the Originators or Peabody, as the case may be.
(d) Certified copies of Proper financing statements (i) the resolutions of the board of directors (or its designated committee) of the Seller Forms UCC-1 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 statementsUCC-3), duly filed executed on or before the date of such initial Purchase purchase 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 Seller and the Administrator (on behalf for the benefit of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement, the Contribution Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(ge) Acknowledgment copiesProper financing statements (Form UCC-3), or time stamped receipt copies duly executed and suitable for filing under the UCC of proper terminations of financing statementsall jurisdictions that the Administrator may deem, if any, necessary or desirable 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, Peabody 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[Intentionally Omitted].
(g) Favorable opinions, in form and substance reasonably satisfactory to the Administrator, of: (i) Copies of executed Blocked Account Agreements with Thompson Coburn, counsel for the Blocked Account Banks.
Seller, the Originators, and Peabody, ▇▇▇ (j▇▇) A favorable opinion of Lily Y▇▇▇▇ery L. Klinger, General Counsel to the Seller, the Originators an▇ ▇▇▇▇▇▇▇, 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 (Peabody 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 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 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 Receivables from the Sellers 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 PurchaseClosing Date 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 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 each Seller approving this Agreement and the other applicable Transaction Documents duly executed and delivered by the parties thereto.
(b) Certified 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 or limited liability company action, as the case may be, and governmental approvals, if any, with respect to this Agreement and the other applicable Transaction Documents (other than the Ancillary Documents) to which it . One such certificate will be a party and (iii) the certificate acceptable for any number of incorporation and by-laws of the Sellersuch Persons having identical authorizations.
(cb) A certificate of the Secretary or Assistant Secretary of the each Seller certifying the names and true signatures of the officers of the such Seller authorized to sign this Agreement Agreement, the other applicable Transaction Documents and the other Transaction Documents (other than the Ancillary Documents) documents to which be delivered by it hereunder. One such certificate will be a party. Until the Administrative Agent receives a subsequent incumbency certificate from the Seller in form and substance acceptable for any number of such Persons having identical authorized officers.
(c) Acknowledgment copies (or other 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 the initial Purchase Purchase, naming each Seller as the seller/debtor and the Purchaser as the purchaser/secured party, or other similar instruments or documents, as the Purchaser may deem necessary or desirable under the UCC of all appropriate jurisdictions that the Administrative Agent and each Purchaser Agent may deem necessary or desirable in order other applicable Law to perfect (with a first priority) the interests Purchaser’s ownership 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 security interest in the Receivables Sale Agreementand Related Security and Collections with respect thereto.
(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 statement amendments or terminations, as applicable, if any, necessary to release or assign 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 any Seller.
(he) Completed UCC search reportsrequests for information, dated on or shortly before the date of such initial Purchase, 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 Purchaser that name the any Seller or the Originator as debtor, together with copies of such other 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).
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jf) A favorable opinion of Lily Y(i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Sellers and (ii) R▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, corporate counsel for General Counsel of the Originator Parent, 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 E and as to such other matters as the Administrative Agent Purchaser may reasonably request.
(kg) 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 Duly executed copies 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 Deposit Account Control 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 terminateddocumentation related thereto.
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 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 of the Board of Directors of each Transaction Party approving this Agreement and the other Transaction Documents duly executed Sale Agreement and delivered by the parties thereto.
(b) Certified 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.
(cb) A certificate of the Secretary or Assistant Secretary of the Seller each Transaction Party certifying the names and true signatures of the officers of the Seller such Transaction Party authorized to sign this Agreement and the other Transaction 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.
(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.
(fc) Acknowledgment copies, copies or time stamped receipt copies (or other evidence of filing) of proper financing statements, 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 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 Agreement.
(gd) Acknowledgment copies, copies or time stamped receipt copies of proper terminations of financing statements, if any, statements 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 any Transaction Party or the Sellerany of their respective Affiliates.
(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 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 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 referred to in Section 2.10 except to the extent the Agent shall have received executed termination statements therefor pursuant to subsection (d) above).
(if) Copies Executed copies of executed Blocked Account Agreements with the for each Blocked Account BanksAccount.
(jg) A favorable opinion Favorable opinions 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 Seller, the Servicer and the SellerOriginator, addressed relating to true sale and substantive consolidation issues, enforceability of this Agreement and the Administrative Agentother Transaction Documents, each Purchaserperfection of security interests, each Purchaser Agent non-contravention of laws and each Alternate Purchaser substantially in the form of Annex F agreements, general corporate matters and as to such other matters as the Administrative Agent may reasonably request.
(lh) A favorable opinion of DSidley ▇▇▇▇▇▇ ▇▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP, counsel for the Seller Agent, relating to filing priority of security interests.
(i) An executed copy of the Funds Transfer Letter.
(j) An executed copy of the Sale Agreement.
(k) A copy of the by-laws of each Transaction Party, certified by the Secretary or Assistant Secretary of such Transaction Party.
(l) A copy of the certificate or articles of incorporation or certificate or articles of formation (as applicable) of each Transaction Party, certified as of a recent date by the Secretary of State or other appropriate official of the State of incorporation or formation (as applicable) of such Transaction Party, and the Originator, addressed a certificate as to the Administrative Agentgood standing of each Transaction Party from such Secretary of State or other official, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form dated as of Annex G and as to such other matters as the Administrative Agent may reasonably requesta recent date.
(m) A favorable opinion The opening 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) Satisfactory results of a review by the Purchasers Executed copies 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 Termination Agreements relating to the initial PurchaseExisting Receivables Facilities.
(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 (Northern Indiana Public Service 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 (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 copy of the resolutions of the Board of Directors of each of the Seller, APR, UPAC, UPAC of California and Parent approving this Agreement, the Purchase and Sale Agreement and the other Transaction Documents duly executed and Documents, as applicable, to be delivered by them hereunder and the parties thereto.transactions contemplated hereby and thereby, certified in each case by its respective Secretary or Assistant Secretary;
(b) Certified copies of Good standing certificates (i) the resolutions for each of the board of directors of the Seller authorizing the executionSeller, delivery, APR and performance Parent issued by the Seller Secretaries of this Agreement State of Delaware and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partyKansas, as applicable, (ii) all documents evidencing other necessary corporate action for UPAC issued by the Secretaries of State of Missouri and governmental approvalsKansas, 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) for UPAC of California issued by the certificate Secretaries of incorporation State of California and by-laws of the SellerKansas.
(c) A certificate of the Secretary or Assistant Secretary of each of the Seller Seller, APR, UPAC, UPAC of California and Parent certifying the names and true signatures of the officers of authorized on their behalf to sign, as applicable, this Agreement, the Seller authorized to sign this Purchase and Sale Agreement and the other Transaction Documents to be delivered by them hereunder (other than on which certificate the Ancillary Documents) to which it will be a party. Until Agent and Purchaser may conclusively rely until such time as 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 receive from Seller, APR, UPAC, UPAC of California and/or Parent, as applicable, a revised certificate meeting the last such certificate delivered to it by the Seller.requirements of this subsection (c) );
(d) Certified The Articles of Incorporation of Seller, APR, UPAC, UPAC of California and Parent, duly certified by the Secretary of State of their respective states of incorporation, as of a recent date acceptable to the Agent, together with a copy of the By-laws of Seller, APR, UPAC, UPAC of California and Parent, duly certified by the Secretary or an Assistant Secretary of Seller, APR, UPAC, UPAC of California, or Parent, respectively;
(e) Copies of acknowledgment copies of (i) proper Financing Statements (Form UCC-1), naming APR, as Originator, as the resolutions assignor of the board of directors (or its designated committee) of the Seller and Servicer authorizing the executionReceivables, deliverySeller, as secured party/purchaser, and performance by the Seller and Servicer Purchaser as assignee of this Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a partysuch Financing Statements, (ii) all documents evidencing other necessary corporate proper Financing Statements (Form UCC-1), naming UPAC as the assignor of Receivables, Seller as secured party/purchaser, and shareholder action and governmental approvalsPurchaser as assignee of such Financing Statements, 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) proper Financing Statements (Form UCC-1), naming UPAC of California as the certificate assignor of incorporation Receivables, Seller as secured party/purchaser, and by-laws Purchaser as assignee of such Financing Statements, (iv) proper Financing Statements (Form UCC-1), naming Seller as the Seller assignor of Receivables or an undivided interest therein and Originator.
Purchaser as assignee and (ev) A certificate proper terminations of the Secretary Financing Statements (Form UCC-3), terminating any and all Financing Statements which cover any Receivable 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.Contract;
(f) Acknowledgment copiesCopies of search reports (including tax, or time stamped receipt copies of proper financing statementsUCC, duly filed on or before ERISA and judgment liens) 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 Purchase, listing all effective financing statements that name Seller, APR, UPAC or UPAC of California as debtor and that are filed in or relate to the jurisdiction referred jurisdictions in which filings were made pursuant to in clause subsection (fe) above that name the Seller or the Originator as debtorabove, together with copies of such financing statements, statements (none of which shall cover any Receivables or Contracts);
(g) Duly executed Lock-Box Agreements with the Lock-Box Banks;
(h) Duly executed Purchase 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.Sale Agreement;
(i) Copies of Duly executed Blocked Account Agreements with the Blocked Account Banks.Custody Agreement;
(j) A favorable opinion Duly executed Backup Servicing Agreement;
(A) Opinion of Lily Y▇▇ Polsinelli, White, ▇▇▇▇▇▇▇, 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 to Seller 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 Originators as to such perfection, authority and other matters and (B) Opinion of Hillix, Brewer, Hoffhaus, Whittaker & ▇▇▇▇▇▇, L.L.C., counsel to Parent, as to authority and other matters, in substantially the Administrative Agent may reasonably request.forms and attached as Exhibit 5.01(k)- 1 and 5.01(k)-2 ;
(l) A favorable opinion Opinions of D▇▇▇▇ ▇▇▇▇ & WPolsinelli, White, ▇▇▇▇▇▇▇▇ & Shalton, counsel for to Seller, as to "true sale" and "non-substantive consolidation" in substantially the forms attached as Exhibits 5.01(l)-1 and 5.01(l)- 2 ;
(m) [Reserved];
(n) Such sublicenses as Purchaser or the Agent shall require with regard to all programs leased by Seller, APR, UPAC or UPAC of California and used in the servicing of the Receivables Pool;
(o) Such powers of attorney as Purchaser or the Agent shall reasonably request to enable them to collect all amounts due under any and all Pool Receivables;
(p) Evidence that each of the Originators and the Seller has marked its master data processing records to reflect Purchaser's undivided ownership interest in each Pool Receivable;
(q) Pay-Off Letters executed by (i) each of Clipper Receivables Corporation, State Street Boston Capital Corporation as administrator and program administrator, Norwest Bank Minnesota, National Association and each of the financial institutions party to a certain Liquidity Asset Purchase Agreement dated as of October 20, 1995 among such parties and the OriginatorSeller, addressed to the Administrative Agentand (ii) Bank of Boston in connection with that certain Restated Secured Credit Agreement dated as of July 29, 1994 (as amended) among UPAC, UPAC of California, Bank of Boston, and Sumitomo Bank Ltd., in each Purchasercase, each Purchaser Agent and each Alternate Purchaser substantially in the form of Annex G Exhibit 5.01(q)-1 and 5.01(q)-2 , respectively;
(r) An executed copy of the Tax Sharing Agreement among Parent and its "affiliated group of companies" (including APR, UPAC, UPAC of California and Seller), a copy of which is attached as Exhibit 5.01(r) ;
(i) A Settlement Statement, prepared in respect of the proposed initial Purchase, assuming a Cut-Off Date of November 30, 1996, (ii) a Weekly Report covering the week ended December 20, 1996, (iii) schedule of information for Receivables included in the initial Purchase in an electronic format acceptable to the Agent, and (iv) implementation of Settlement reporting procedures and formats satisfactory to the Agent;
(t) A report in form and substance satisfactory to the Agent as to such other matters as a pre-closing due diligence audit of the Administrative Agent may reasonably request.
(m) A favorable opinion of MorrisReceivables, Nichols, Arsht & Tthe Servicer and the Servicer's procedures by BDO ▇▇▇▇▇▇, 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.▇;
(nu) Satisfactory results of a review by the Purchasers Duly executed Liquidity Agreement;
(v) Duly executed Fee Letter;
(w) Certified copy of the Seller’s and the Originator’s collection, operating and reporting systems, Credit and Collection PolicyPolicy of each of APR, historical receivables data UPAC and accounts, including satisfactory results UPAC 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.California;
(ox) Monthly Receivables Report representing Satisfactory completion of due diligence (including the performance of collateral audit) by the portfolio of Pool Receivables for the month prior to the initial Purchase.Agent;
(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.
(ty) 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;
(uz) Receipt and satisfactory review of the final Protiviti audit report.Arrangement Fee; and
(vaa) Evidence that Such other further documents, certificates, information and/or approvals as Purchaser, 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 terminatedAgent or any Liquidity Bank shall reasonably request.
Appears in 1 contract
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 purchase ---------------------------------------- of an undivided interest pursuant to 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 Purchaserelated Purchase Date the following, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
: (a) A a counterpart of this Agreement and the other Transaction Documents Purchase and Sale Agreement duly executed and delivered by the parties thereto.
Seller Parties and the Sellers, as the case may be; (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, Seller Parties; (c) a certificate of the Assistant Secretary of each Purchaser, Seller Party certifying in each Purchaser case (i) the names and signatures of its applicable officers that shall execute and deliver the Transaction Documents (on which certificate the 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 may reasonably request.
shall receive a revised certificate meeting the requirements of this clause), (kii) A favorable opinion that attached thereto is a true and correct copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the certificate or articles of incorporation (certified by the Secretary of State of Delaware or California, 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 case may reasonably request.
(l) A favorable opinion be), by-laws of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇such Seller Party, counsel for the Seller and the Originator, addressed to the Administrative Agent, in each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially case as 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 effect on the date of such certification, (iii) that attached thereto are true and complete copies of excerpts of resolutions adopted by the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing Board of Directors of such Seller Party, approving the execution, delivery and performance of the portfolio of Pool Receivables for the month prior this Agreement and all other Transaction Documents to the initial Purchase.
which such Seller Party is a party; and (piv) Evidence of payment that attached thereto are good standing certificates issued by the Seller Secretary 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 State 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 Delaware with respect to the Seller issued Mattel and Mattel Factoring; (d) a UCC-1 financing statement signed by the Secretaries Transferor in form for filing with the Secretary of State of California; (f) good standing certificates dated as of a recent date for each Seller Party from the Secretary of State of the States of Delaware and California.
; (rg) Good standing certificates copies of searches of financing statements filed with respect to the Originator issued by the Secretaries (i) Secretary of State of the States State of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from , naming each of the rating agencies then rating Transferor and Mattel Sales as the Notes debtor, and (ii) the Secretary of each Conduit Purchaser confirming State of the rating State of its Notes after giving effect New York, naming ▇▇▇▇▇▇- ▇▇▇▇▇ as the debtor; (h) all accrued and outstanding amounts owing under the Prior Transfer and Administration Agreement which have been detailed in writing and delivered 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) transferor or servicer thereunder shall have been paid in full full, and all obligations (i) each other item to be delivered pursuant to Section 3.1 of the Seller Purchase and the Servicer thereunder have been terminatedSale Agreement.
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 Purchase after effectiveness of this purchase under the 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 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, together with each of the closing documents required to be delivered under any Transaction Document.
(b) Certified copies of (i) the resolutions of the board Board of directors Directors of each of the Seller Seller, the Servicer, and any Originator authorizing the execution, delivery, and performance by the Seller Seller, the Servicer and any Originator of this the 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 the 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, the Servicer, and any Originator.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the Servicer, and any Originator certifying the names and true signatures of the officers of the Seller Seller, the Servicer, and any Originator authorized to sign this the 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 Seller, the Servicer, and any other 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 Seller, the Servicer, and any Originator.
(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 time-stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase purchase under the UCC or any comparable law 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 Agreementother Transaction Documents.
(ge) Acknowledgment copies, or time 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.
(hf) Completed UCC search reportsrequests for information, dated on or shortly before the date of such initial Purchasepurchase, listing the financing statements referred to in SUBSECTION (e) above and all other effective financing statements filed in the jurisdiction jurisdictions referred to in clause SUBSECTION (fe) above that name the Seller or the any Originator as debtor, together with copies of such other financing statementsstatements (none of which shall cover any Pool Receivables, Contracts or Related Security), 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 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 under this Agreement is subject to the following conditions precedent that the Administrative Agent Administrator and each Purchaser Agent shall have received on or before the date of such Purchase (other than with respect to the condition set forth in paragraph (g), which such condition must be satisfied within 30 days 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 of this the 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 and Worthington authorizing the execution, delivery, delivery and performance by the Seller Seller, such Originator and Worthington, as the case may be, of this the 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 organizational action and governmental approvals, if any, with respect to this the 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 certificate of formation and limited liability company agreement or any other organizational document, as applicable, of the Seller, each Originator and Worthington.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the Originators and Worthington certifying the names and true signatures of the its officers of the Seller who are authorized to sign this the 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 or Worthington, as the Administrative Agentcase 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 or Worthington, as the case may be.
(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 statements, 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 Administrator may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent Seller, Worthington and the Administrator (on behalf of itself, the Purchaser Agents and the Purchaserseach Purchaser) contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 Originators, Worthington or the Seller.
(hf) Completed UCC search reports, dated on or shortly before the date of such the initial Purchasepurchase hereunder, listing all effective the financing statements filed in the jurisdiction all applicable jurisdictions referred to in clause subsection (fe) above that name the Seller Originators or the Originator Seller as debtor, together with copies of such other 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 jurisdictions, as the Administrative Agent Administrator or any Purchaser Agent may request, showing no such liens Adverse Claims on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(ig) Copies of executed Blocked Account Lock-Box Agreements with the Blocked Account Bankseach Lock-Box Bank.
(jh) A favorable opinion of Lily YFavorable opinions, in form and substance reasonably satisfactory to the Administrator and each Purchaser Agent, of: (i) ▇▇▇▇▇ Day ▇▇▇▇▇▇ & ▇▇▇▇▇, corporate counsel for the Originator Seller, the Originators, Worthington and the SellerServicer, 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.
(kii) A favorable opinion of D▇▇▇▇ ▇. ▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Originator Seller, Worthington 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 requestOriginators.
(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.
(ni) Satisfactory results of a review and audit (performed by the Purchasers representatives of each Purchaser Agent) of the Seller’s and the OriginatorServicer’s collection, operating and reporting systems, the Credit and Collection PolicyPolicy of each Originator, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the OriginatorServicer’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Purchase under this Agreementlocation(s).
(oj) Monthly Receivables Report A pro forma Information Package representing the performance of the portfolio of Receivables Pool Receivables for the calendar month prior to the initial Purchasebefore closing.
(pk) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the each Purchaser Group 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, 6.4 of the Agreement and the Fee Letter and the Engagement Letter.
(ql) Each Purchaser Group Fee Letter (received only by the related Purchaser Group Agent) duly executed by the Seller and the Servicer.
(m) Good standing certificates with respect to each of the Seller Seller, the Originators and the Servicer issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware each such Person’s organization and Californiaprincipal place of business.
(rn) Good standing certificates with respect to To the Originator issued extent required by the Secretaries of the States of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters each Conduit Purchaser’s commercial paper program, letters from each of the rating agencies then rating the Notes of each Conduit Purchaser confirming the rating of its such Notes after giving effect to the transactions transaction contemplated by this the Agreement.
(uo) Receipt Each Liquidity Agreement (received only by the related Purchaser Group Agent) and satisfactory review of all other Transaction Documents duly executed by the final Protiviti audit reportparties thereto.
(vp) Evidence that A computer file containing all information with respect to the “Liens” created Receivables as the Administrator or any Purchaser Agent may reasonably request.
(and q) Such other approvals, opinions or documents 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 or any Purchaser Agent may reasonably request.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Worthington Industries 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 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 each of ConMed, Linvatec Canada and Linvatec 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 ConMed, Linvatec Canada or Linvatec, 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 each of ConMed, Linvatec Canada and Linvatec, duly certified by the Secretary of State (or comparable Governmental Authority) of the Secretary or Assistant Secretary jurisdiction of the Seller certifying the names and true signatures its organization, 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 Acknowledgment copies of (i) the resolutions or time stamped receipt copies, of the board proper financing statements (Form UCC-1) that name ConMed and Linvatec, respectively, 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 ConMed 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 ConMed or Linvatec;
(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 September 30, Contracts or Related Security.2001;
(h) An Initial Purchaser Note in favor of each of ConMed, Linvatec Canada and Linvatec, respectively, duly executed by the Initial Purchaser;
(i) Copies A certificate from an officer of executed Blocked Account Agreements with each of ConMed, Linvatec Canada and Linvatec, respectively, to the Blocked Account Bankseffect that Servicer and each of ConMed, Linvatec Canada and Linvatec, respectively, 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 CONMED RECEIVABLES CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF NOVEMBER 1, 2001, AS AMENDED FROM TIME TO TIME, BETWEEN CONMED CORPORATION, CERTAIN SUBSIDIARIES OF CONMED CORPORATION AND CONMED RECEIVABLES CORPORATION; AND AN OWNERSHIP AND SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND ASSIGNED TO FLEET SECURITIES, INC., AS ADMINISTRATOR, PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF NOVEMBER 1, 2001, AMONG CONMED CORPORATION, CONMED RECEIVABLES CORPORATION, BLUE KEEL FUNDING, LLC, FLEET NATIONAL BANK AND FLEET SECURITIES INC., AS THE ADMINISTRATOR; and
(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 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 of (i) the resolutions A copy of the board written consent of directors KCI, as member 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 formation, operating agreement or other organizational document of the Originator, duly certified by the Secretary of State of the jurisdiction of Originator's organization as of a recent date acceptable to the Servicer, together with a copy of the limited liability company agreement of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator;
(f) Originals of the proper financing statements (Form UCC-1) that have been duly executed and name the Originator authorized to sign this Agreement as the debtor/seller and the other Transaction Documents Company as the secured party/purchaser (other than and KCI Funding Corporation, as assignee of the Ancillary DocumentsCompany, and the Issuer, as assignee of KCI Funding Corporation) 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;
(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), 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 Sale 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;
(h) A favorable opinion of Sidley & Austin, counsel to 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 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 A KCI 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 Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator to the effect that the Servicer and the SellerOriginator have placed on the most recent, addressed and have taken all steps reasonably necessary to the Administrative Agentensure that there shall be placed on each subsequent, 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 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 KPMG CONSULTING, INC. PURSUANT TO A SALE AGREEMENT, DATED AS OF MAY 22, 2000, AS AMENDED, BETWEEN KPMG CONSULTING, LLC AND KPMG CONSULTING, INC.
(q) Good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and California, 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.
(r) Good standing certificates with respect to the Originator issued by the Secretaries of the States of Delaware and California, 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.
(s) An executed Receivables Sale Agreement, AS THE SERVICER, KCI FUNDING CORPORATION, MARKET STREET FUNDING CORPORATION AND PNC BANK, NATIONAL ASSOCIATION.
(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: Sale Agreement (KPMG Consulting Inc)
Conditions Precedent to Initial Purchase. The initial Initial Purchase after effectiveness of under this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received on or before the date of such Purchasepurchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart of this the 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 and Peabody authorizing the execution, delivery, delivery and performance by the Seller Seller, the Originators and Peabody, as the case may be, of this the 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 or organizational action and governmental approvals, if any, with respect to this the 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 limited liability company agreement, as applicable, of the Seller, the Originators and Peabody.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, each of the Originators and Peabody certifying the names and true signatures of the its officers of the Seller who are authorized to sign this the Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be is a party. Until the Administrative Agent Administrator receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentSeller, the Administrative Agent Originators or Peabody, as the case may be, the Administrator shall be entitled to rely on the last such certificate delivered to it by the Seller, the Originators or Peabody, as the case may be.
(d) Certified copies of Proper financing statements (i) the resolutions of the board of directors (or its designated committee) of the Seller Forms UCC-1 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 statementsUCC-3), duly filed executed on or before the date of such initial Purchase purchase 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 and the Issuer contemplated by the Receivables Agreement, the Contribution Agreement and the Sale Agreement.
(ge) Acknowledgment copiesProper financing statements (Form UCC-3), or time stamped receipt copies duly executed and suitable for filing under the UCC of proper terminations of financing statementsall jurisdictions that the Administrator may deem, if any, necessary or desirable 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, Peabody or the Seller.
(hf) Completed UCC search reports, dated on or shortly before the date of such the initial Purchasepurchase hereunder, listing all effective the financing statements filed in the jurisdiction all applicable jurisdictions referred to in clause subsection (fe) above that name the Seller Originators, Peabody or the Originator Seller as debtor, together with copies of such other 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 jurisdictions, as the Administrative Agent or any Purchaser Agent Administrator may request, showing no such liens Adverse Claims on any of the Pool Assets, Pool Receivables, Contracts or Related SecurityAssets other than such Adverse Claims as to which those financing statements (Form UCC-3) referred to in subsection (e) above shall terminate.
(g) Favorable opinions, in form and substance reasonably satisfactory to the Administrator, of: (i) Copies of executed Blocked Account Agreements with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Blocked Account Banks.
Seller, the Originators, and Peabody, and (jii) A favorable opinion of Lily Y▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and General Counsel to the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent Originators and each Alternate Purchaser substantially in the form of Annex E and as to such other matters as the Administrative Agent may reasonably requestPeabody.
(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.
(nh) Satisfactory results of a review and audit (performed by the Purchasers representatives of the Seller’s and Administrator) of the Originator’s Servicer's collection, operating and reporting systems, the Credit and Collection PolicyPolicy of the Originator, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s Servicer'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 the Agreement.
(oi) Monthly Receivables Report A pro forma Information Package representing the performance of the portfolio of Receivables Pool Receivables for the calendar month prior to the initial Purchasebefore closing.
(pj) 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, 5.4 of the Agreement and the Fee Letter and the Engagement Letter.
(qk) The Fee Letter duly executed by the Seller and the Servicer.
(l) Good standing certificates with respect to each of the Seller Seller, the Originators, and Peabody issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware each such Person's organization or formation and Californiaprincipal place of business.
(rm) Good standing certificates The Liquidity Agreement and all other Transaction Documents duly executed by the parties thereto.
(n) All information with respect to the Originator issued by Receivables as the Secretaries of Administrator or the States of Delaware and CaliforniaIssuer may reasonably request.
(so) An executed Receivables Sale AgreementSuch other approvals, opinions or documents as the Administrator or the Issuer 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
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
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 is subject Prior to the initial purchase hereunder, the Customer shall deliver to WFBC, unless waived by it, the following conditions precedent that the Administrative Agent items and each Purchaser Agent shall have received on or before the date of such Purchasedocuments, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentWFBC:
(a) A counterpart an executed copy of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.Agreement;
(b) Certified copies of (i) the resolutions a certificate of an officer of the board Customer containing a copy 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 its articles of incorporation and by-laws bylaws, an appropriate resolution of the Seller.
(c) A certificate of the Secretary or Assistant Secretary of the Seller certifying its directors, and the names and true signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Related 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, deliverybehalf, 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 an officer of the Seller and Originator.
(e) A certificate of the Secretary or Assistant Secretary of the Originator certifying Customer containing the names and true signatures of the officers of the Originator authorized to sign all reports and other submissions under this Agreement and the other Transaction Related Documents (other than the Ancillary Documents) on its behalf, on which certificates WFBC shall be entitled to which it will be a party. Until the Administrative Agent conclusively rely until such time as WFBC receives a subsequent incumbency certificate from the Originator Customer a replacement certificate meeting the requirements of this Section 4.01(b)(i) or (ii), as the case may be;
(c) a certificate of status, good standing or compliance in respect of the Customer issued by its jurisdiction of incorporation and a certificate of status, good standing or compliance in respect of the Customer issued by the appropriate authorities in each jurisdiction in which the Customer is required to be registered in order to conduct its business;
(d) a guaranty by the Customer guaranteeing the obligations owing under each Affiliate Account Purchase Agreement;
(e) an amendment to each Affiliate Account Purchase Agreement;
(f) a tri-party agreement by and among the Customer, TS Employment Inc. and WFBC;
(g) favorable legal opinions of counsel to the Customer, 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.WFBC;
(fh) Acknowledgment copies, or time stamped receipt executed 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 discharges 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 statementsreleases, if any, necessary to discharge or release all security interests Liens (other than Permitted Liens) and other rights or interests of any Person (other than the Seller and the Administrative Agent) in the Pool ReceivablesPurchased Accounts, Contracts the Related Rights or Related Security the Collateral 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 debtorCustomer, together with file stamped copies of such the relevant UCC-3 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 current searches of executed Blocked Account Agreements with appropriate filing offices showing that (i) no Liens have been filed and remain in effect against the Blocked Account Banks.Customer except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of proceeds of the initial purchase, they will satisfy, release or terminate such Liens in a manner satisfactory to WFBC, and (ii) WFBC has duly filed all financing statements necessary to perfect its Lien on the Purchased Accounts, the Related Rights and the Collateral to the extent it is capable of being perfected by filing, and such other similar instruments or documents as may be necessary and, in WFBC’s reasonable discretion, advisable under any applicable statute to perfect, record or protect WFBC’s interest in the Purchased Accounts, the Related Rights or the Collateral;
(j) A favorable opinion payment of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for all fees due under the Originator and the Seller, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form terms 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 this Agreement through the date of the initial Purchase purchase and payment of all expenses incurred by WFBC and through such date and that are required to be paid by the Customer under this Agreement.;
(ok) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior a payoff letter from Amerisource Funding, Inc.;
(l) an amendment to the initial Purchase.participation agreement between WFBC and Sterling National Bank; and
(pm) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter)such other approvals, 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 opinions or on such date, plus such additional amounts of Attorney Costs documents 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 WFBC in Section 6.4, the Fee Letter and the Engagement Letterits sole discretion may require.
(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: Account Purchase Agreement (Corporate Resource Services, Inc.)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Second Amended and Restated Receivables Purchase Agreement is and the initial Purchase hereunder are 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 AgentBank Purchaser:
(a) A counterpart copy of this the resolutions of the Board of Directors of each SCI Party approving the Agreement Documents to be delivered by such SCI Party and the other Transaction Documents duly executed and delivered transactions contemplated thereby, certified on behalf of such SCI Party by the parties thereto.such SCI Party's Secretary or Assistant Secretary;
(b) Certified copies A good standing certificate for Seller issued by the Secretary of (i) State of Delaware and a foreign qualification certificate issued by the resolutions Secretary of State of California; good standing or foreign qualification certificates for SCI issued by the Secretaries of State of Alabama, California, Colorado, New Hampshire, North Carolina, Maine and South Dakota; good standing or foreign qualification certificates for Guarantor issued by the Secretaries of State of Delaware and California; and good standing certificates for each Originator issued by the Secretary of State or other governmental authority of the board states or jurisdictions 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 such Originator's incorporation and by-laws principal place of the Seller.business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller each SCI Party certifying on behalf of such Person 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 in connection herewith (other than the Ancillary Documents) to on 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 may conclusively rely until such time as the Administrative Agent may deem necessary shall receive a revised certificate meeting the requirements of this subsection (c));
(d) The Articles or desirable in order to perfect (Certificate of Incorporation of each SCI Party, duly certified by the Secretary of State or similar office of the State under the laws of which such SCI Party was organized, as of a recent date, together with a first prioritycopy of the By-laws of each SCI Party, duly certified on behalf of such Person by the Secretary or an Assistant Secretary of such SCI Party;
(e) Acknowledgment copies (or other evidence of filing reasonably satisfactory to the interests Administrative Agent) of amendments to the Financing Statements, filed in connection with the Original Receivables Agreement, and acknowledgment copies of Financing Statements or other filings with respect to all of the Originators, or other, similar instruments or documents, as may be necessary or, in the reasonable opinion of the Administrative Agent (on behalf Agent, desirable under the UCC or any comparable law of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and all appropriate jurisdictions to perfect (with a first priority) Seller's interests in the interests of the Seller as contemplated by the Pool 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) 's interests in the Pool Receivables, Contracts assigned to it or Related Security previously granted by the Originator otherwise created or the Seller.arising hereunder;
(hf) Completed UCC A search reports, dated on or shortly before report provided in writing to the date of such initial Purchase, Administrative Agent listing all effective financing statements Financing Statements 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 debtorAdministrative Agent shall reasonably request, together with copies of such financing statementsstatements (none of which shall cover the Pool or any part thereof, and similar search reports with respect to judgment liens, federal tax liens and liens except for those in favor 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.Agent);
(ig) Copies Opinions of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable opinion of Lily YPowell, Goldstein, Frazer & Murphy LLP, counsel for Seller, SCI and Guarantor, a fav▇▇▇▇▇▇ op▇▇▇▇▇ of Michael M. Sullivan, Esq., in-house counsel for Seller, SCI and G▇▇▇▇▇▇▇▇, corporate ▇▇▇ ▇ ▇▇▇orable opinion of counsel for each Originator, in each case, satisfactory in form and substance to the Originator Administrative Agent and each Bank Purchaser;
(h) Evidence of the payment by Seller to the Administrative Agent of the structuring fee set forth in the separate engagement letter between the Administrative Agent and the Seller; and
(i) Such other documents, 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 amendments or certificates as the Administrative Agent may or any Purchaser shall 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 is Eligible Assets was subject to the following conditions precedent that the Administrative Agent conditions precedent to the initial "Purchase" under the CAFCO Agreement shall have been satisfied on or prior to the date of such Purchase and each Purchaser that the Agent shall have (i) completed a review, satisfactory to it in its sole discretion, of the Seller's billing, collection and reporting systems relating to the Receivables, including without limitation the Credit and Collection Policy, and (ii) 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 of this Agreement and the other Transaction Documents duly executed and delivered by the parties thereto.The Certificates;
(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 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 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 Agent and the Administrative Owner 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 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 Secured Party's copies of (i) the resolutions or copies, certified by an officer of the board Seller, of directors (or its designated committeeacknowledgment copies) of the Seller and Servicer authorizing the executionproper Financing Statements (Form UCC-1), delivery, and performance by the Seller and Servicer of this Agreement and the other Transaction Documents (other than the Ancillary Documents) dated a date reasonably near 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 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 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 the ownership interests in all Receivables in which an interest may be assigned hereunder;
(with a first prioritye) the interests Secured Party's copies (or copies, certified by an officer of the Administrative Agent (on behalf Seller, of itself, the Purchaser Agents and the Purchasersacknowledgment copies) 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, Financing Statements (Form UCC-3) necessary to release all security interests and other rights rights, except the lien, if applicable, referred to in Section 4.01(h), 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.;
(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 YLeon ▇▇ ▇▇. ▇▇▇▇▇, corporate counsel ▇▇neral 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 Exhibit C hereto and as to such other matters as the Administrative Agent may reasonably request; and
(g) A favorable opinion of Shearman & Sterling, counsel for the Agent, as 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 1 contract
Sources: Trade Receivables Purchase and Sale Agreement (Detroit Edison Securitization Funding LLC)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of pursuant to 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 Agentprecedent:
(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 each 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 executionPurchaser's behalf, deliveryshall have received, 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 Purchase, the UCC following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to each Purchaser Agent:
(i) The amendment to the Sale Agreement ("the Sale Amendment"), dated as of all jurisdictions that the date hereof duly executed by the parties thereto;
(ii) Acknowledgment copies (or other evidence of filing reasonably acceptable to 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 itselfthe Secured Parties) of (A) proper amendments to certain financing statements (Form UCC-3), in such form as the Purchaser Agents Agents, on behalf of the Secured Parties, may reasonably request, naming each of the Originators as the 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) amendment to financing statements (Form UCC-3), in such form as the Agents, on the behalf of the Secured Parties, may reasonably request, naming the Seller as the debtor and the seller of undivided percentage interests in the Pool ReceivablesReceivables and Related Assets and the Administrative Agent, Contracts 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 Agents, on the Purchasers' 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 each Purchaser's undivided percentage interest in, the Pool Receivables and Related Security previously granted by the Originator or the Seller.Assets;
(hiii) 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 A reliance letter with respect to judgment liens, federal tax liens and liens the legal opinions 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▇ & ▇▇▇▇ ▇▇▇▇ & WLLP, counsel to the Seller Parties, the Originators and Lennox International in form and substance satisfactory to the Liberty Street Purchaser Agent.
(iv) An Information Package, prepared as of the Cut-Off Date of May [24], 2003;
(v) The Liberty Street Liquidity Agreement, duly executed by Liberty Street, the Liberty Street Liquidity Agent and each Liberty Street Liquidity Bank;
(vi) Evidence that the Lockbox Accounts are maintained in the name of the Seller;
(vii) payment in immediately available funds of the amount determined to be due to Blue Ridge and the Administrative Agent pursuant to the Information Package delivered in clause (iv) above with respect to the removal of ▇▇▇▇▇▇▇, counsel for ▇▇ as an Originator pursuant to the Originator Sale Amendment. The payment of amounts due under this clause (vii) shall be applied to the reduction of the Invested Amount with respect to the Blue Ridge Purchaser Group and the Seller, addressed payment of all other fees and amounts then due and owing to Blue Ridge and the Administrative Agent, each Purchaserincluding, each Purchaser Agent without limitation, Earned Discount, and each Alternate Purchaser substantially in shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right the form Seller might have against the Administrator or Blue Ridge, all of Annex F which rights are hereby expressly waived by the Seller;
(viii) a fully executed copy of the Fee Letter;
(ix) the Amended and Restated Assurance Agreement, dated as to of the date hereof, duly executed by Lennox International; and
(x) such other matters agreements, instruments, certificates, opinions and other documents as the Administrative Agent Agents may reasonably request.; and
(lb) 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 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 Letterpaid 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 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.
(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 Initial Purchase after effectiveness of under ---------------------------------------- this Agreement is subject to the following conditions precedent that the Administrative Agent and each Purchaser Agent Administrator shall have received on or before the date of such Purchasepurchase, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser AgentAdministrator:
(a) A counterpart of this the 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 written consent of KCI as the member of the Originator and the resolutions of the executive committee of the Broad of Directors of KCI authorizing the execution, delivery, delivery and performance by the Seller Seller, the Originator and KCI, as the case may be, of this the 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 the 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 SellerSeller and KCI.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the Originator and KCI certifying the names and true signatures of the its officers of the Seller who are authorized to sign this the Agreement and the other Transaction Documents (other than the Ancillary Documents) to which it will be a party. Until the Administrative Agent Administrator receives a subsequent incumbency certificate from the Seller in form and substance satisfactory to the Administrative AgentSeller, the Administrative Agent Originator or KCI, as the case may be, the Administrator shall be entitled to rely on the last such certificate delivered to it by the Seller, the Originator or KCI, as the case may be.
(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 statements, 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 Administrator may deem necessary or desirable in order to perfect (with a first priority) the interests of the Administrative Agent (on behalf of itselfSeller, KCI, the Purchaser Agents Originator and the Purchasers) Issuer contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 Originator, KCI or the Seller.
(hf) Completed UCC search reports, dated on or shortly before the date of such the initial Purchasepurchase hereunder, listing all effective the financing statements filed in the jurisdiction all applicable jurisdictions referred to in clause subsection (fe) above that name the Seller -------------- Originator, KCI or the Originator Seller as debtor, together with copies of such other 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 jurisdictions, as the Administrative Agent or any Purchaser Agent Administrator may request, showing no such liens Adverse Claims on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(g) Favorable opinions, in form and substance reasonably satisfactory to the Administrator, of: (i) Copies of executed Blocked Account Agreements with Sidley & Austin, counsel for the Blocked Account Banks.
Seller, KCI, the Originator, and the Servicer, (jii) A favorable opinion of Lily YHunton & ▇▇ ▇▇▇▇▇▇▇, corporate special Virginia counsel for the Originator and to the Seller, addressed to KCI and the Administrative AgentOriginator, 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.
(kiii) 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▇▇▇. ▇▇▇▇, General Counsel of KPMG LLP and counsel for the Seller to KCI 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.
(nh) Satisfactory results of a review and audit (performed by the Purchasers representatives of the Seller’s and Administrator) of the Originator’s Servicer's collection, operating and reporting systems, the Credit and Collection PolicyPolicy of the Originator, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s Servicer'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 the Agreement.
(oi) Monthly Receivables Report A pro forma Information Package representing the performance of the portfolio of Receivables Pool Receivables for the calendar month prior to the initial Purchasebefore closing.
(pj) 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, 5.4 of the Fee Letter Agreement and the Engagement ----------- Fee Letter.
(qk) The Fee Letter duly executed by the Seller and the Servicer.
(l) Good standing certificates with respect to each of the Seller Seller, KCI, the Originator and the Servicer issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware each such Person's organization or formation and Californiaprincipal place of business.
(rm) Good standing certificates The Liquidity Agreement and all other Transaction Documents duly executed by the parties thereto.
(n) A computer file containing all information with respect to the Originator issued by Receivables as the Secretaries of Administrator or the States of Delaware and CaliforniaIssuer may reasonably request.
(so) An executed Receivables Sale Agreement.[RESERVED]
(tp) Letters from each of Such other approvals, opinions or documents as the rating agencies then rating Administrator or the Notes of each Conduit Purchaser confirming the rating of its Notes after giving effect to the transactions contemplated by this AgreementIssuer may reasonably request.
(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 (KPMG Consulting 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 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 under this Agreement is subject to the following conditions 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) reasonably satisfactory to the Administrative Agent Administrator 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 of: (i) the resolutions of the board Board of directors Directors of each of the Seller Seller, the Originators and the Servicer authorizing the execution, delivery, delivery and performance by the Seller Seller, such 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 limited liability company or 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 and the Servicer.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, the 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 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 or the Servicer, as the case may be.
(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 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 and the Administrator (on behalf of each Purchaser) contemplated by this Agreement and the Receivables Sale Agreement.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 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 (Cincinnati Bell Inc)
Conditions Precedent to Initial Purchase. The initial Purchase after effectiveness of this Third Amended and Restated Receivables Purchase Agreement is and the initial Purchase hereunder are 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 AgentBank Purchaser:
(a) A counterpart copy of this the resolutions of the Board of Directors of each SCI Party approving the Agreement Documents to be delivered by such SCI Party and the other Transaction Documents duly executed and delivered transactions contemplated thereby, certified on behalf of such SCI Party by the parties thereto.such SCI Party's Secretary or Assistant Secretary;
(b) Certified copies A good standing certificate for Seller issued by the Secretary of (i) State of Delaware and a foreign qualification certificate issued by the resolutions Secretary of State of California; good standing or foreign qualification certificates for SCI issued by the Secretaries of State of Alabama, California, Colorado, New Hampshire, North Carolina, Maine and South Dakota; good standing or foreign qualification certificates for Guarantor issued by the Secretaries of State of Delaware and California; and good standing certificates for each Originator issued by the Secretary of State or other governmental authority of the board states or jurisdictions 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 such Originator's incorporation and by-laws principal place of the Seller.business;
(c) A certificate of the Secretary or Assistant Secretary of the Seller each SCI Party certifying on behalf of such Person 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 in connection herewith (other than the Ancillary Documents) to on 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 may conclusively rely until such time as the Administrative Agent may deem necessary shall receive a revised certificate meeting the requirements of this subsection (c));
(d) The Articles or desirable in order to perfect (Certificate of Incorporation of each SCI Party, duly certified by the Secretary of State or similar office of the State under the laws of which such SCI Party was organized, as of a recent date, together with a first prioritycopy of the By-laws of each SCI Party, duly certified on behalf of such Person by the Secretary or an Assistant Secretary of such SCI Party;
(e) Acknowledgment copies (or other evidence of filing reasonably satisfactory to the interests Administrative Agent) of amendments to the Financing Statements, filed in connection with the Original Receivables Agreement, and acknowledgment copies of Financing Statements or other filings with respect to all of the Originators, or other, similar instruments or documents, as may be necessary or, in the reasonable opinion of the Administrative Agent (on behalf Agent, desirable under the UCC or any comparable law of itself, the Purchaser Agents and the Purchasers) contemplated by the Agreement and all appropriate jurisdictions to perfect (with a first priority) Seller's interests in the interests of the Seller as contemplated by the Pool 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) 's interests in the Pool Receivables, Contracts assigned to it or Related Security previously granted by the Originator otherwise created or the Seller.arising hereunder;
(hf) Completed UCC A search reports, dated on or shortly before report provided in writing to the date of such initial Purchase, Administrative Agent listing all effective financing statements Financing Statements 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 debtorAdministrative Agent shall reasonably request, together with copies of such financing statementsstatements (none of which shall cover the Pool or any part thereof, except for those in favor of the Administrative Agent);
(g) Opinions of counsel for Seller, SCI and Guarantor, a favorable opinion of in-house counsel for Seller, SCI and Guarantor, and similar search reports with respect a favorable opinion of counsel for each Originator, in each case, satisfactory in form and substance to judgment liens, federal tax liens the Administrative Agent and liens each Bank Purchaser;
(h) Evidence of the Pension Benefit Guaranty Corporation payment by Seller to the Administrative Agent of the arrangement fee set forth in such jurisdictions the separate engagement letter between Banc of America Securities LLC and the Guarantor; and
(i) Such other documents, amendments or certificates 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 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 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:
(a1) A counterpart Certified copies of the resolutions of the Board of Managers of the Seller and the Board of Directors of the Originator approving this Agreement and the other Transaction Documents duly executed Originator Purchase Agreement and delivered by the parties thereto.
(b) Certified 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 or limited liability company 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 SellerOriginator Purchase Agreement.
(c2) 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 Seller and the Originator authorized to sign the Originator Purchase Agreement and this Agreement and the other Transaction Documents (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 Originator 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 Originatorthereunder.
(f3) Acknowledgment copies, or time stamped receipt Executed 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 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 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.
(g4) Acknowledgment copies, or time stamped receipt Executed 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 the Originator or and (ii) the collateral security referred to in Section 2.11 previously granted by the Seller.
(h5) 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 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 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).
(i6) Copies Executed copies of executed Blocked Account Lock-Box Agreements with the Blocked Account Bankseach Lock-Box Bank.
(j7) A favorable opinion Favorable opinions of Lily Y▇▇ ▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇, 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 Annexes C-1 and C-2 hereto 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 8) The Fee 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 (Personal Care Holdings 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 as of such date of purchase, 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 Parent approving this Agreement and the other Transaction Documents duly executed Parent/Seller Purchase Agreement and delivered by the parties thereto.
(b) Certified 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 or limited liability company action, as the case may be, 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 SellerParent/Seller Purchase Agreement.
(cb) A certificate of the Secretary or Assistant Secretary of the Seller and of the Parent certifying the names and true signatures of the officers of the Seller and of the Parent authorized to sign the Parent/Seller Purchase Agreement and this Agreement and the other Transaction Documents (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.
(fc) Acknowledgment copies, copies or time stamped receipt copies of proper financing statements, 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 Parent/Seller 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 Originator Purchase Agreement.
(gd) 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 (other than the Seller and interests evidenced by the Administrative Agentfinancing statement filings referred to in the second sentence of Section 4.01(h)) in (i) the Pool Receivables, Contracts or Related Security previously 32 38 granted by the Seller, the Parent 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 that name the Seller Seller, the Parent 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 of Lily Y▇▇ (i) And▇▇▇▇▇▇ & Kur▇▇, corporate ▇.L.P., counsel for the Originator Seller and the Parent, (ii) in house counsel to the Seller, addressed the Parent and the Originators and (iii) Delaware counsel to the Administrative AgentSeller, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form forms of Annex E C hereto and as to such other matters as the Administrative Agent may reasonably request.
(h) The Fee Agreement.
(i) An executed copy of the Parent/Seller Purchase Agreement and the Originator Purchase Agreement.
(j) A copy of the limited liability company agreement of the Seller, certified by the Parent, as member of the Seller, and of the by-laws of the Parent, certified by the Secretary or Assistant Secretary of the Parent.
(k) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the certificate of formation of the Seller and of the certificate of incorporation of the Parent, counsel for certified as of a recent date by the Originator 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 and the SellerParent from such Secretary of State or other official, addressed to the Administrative Agent, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form dated as of Annex F and as to such other matters as the Administrative Agent may reasonably requesta recent date.
(l) A favorable opinion The opening pro forma balance sheet of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller and the Originator, addressed referred 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 4.01(e).
(m) A favorable opinion Confirmation (informally but to the reasonable satisfaction of Morris, Nichols, Arsht & Tthe Agent) by each of S&P and Moo▇▇'▇ ▇▇▇▇at the commercial paper notes of Atlantic issued in connection with this Agreement will be, special Delaware counsel for the Originator or will continue to be, rated at least A-1 and the SellerP-1, 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 requestrespectively.
(n) Satisfactory results of a review by the Purchasers Certified copies of the Seller’s 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 Parent and the Originator’s collectionOriginators approving the Originator Purchase Agreement and certified copies of all documents evidencing other necessary corporate, operating partnership or limited liability company action, as the case may be, and reporting systemsgovernmental approvals, Credit and Collection Policyif any, historical receivables data and accounts, including satisfactory results of a review of with respect to the Seller’s and the Originator’s operating locations and satisfactory review of the Eligible Receivables in existence on the date of the initial Originator Purchase under this Agreement.
(o) Monthly Receivables Report representing A certificate of a Secretary or Assistant Secretary (or, in the performance case of the portfolio Originators, other equivalent office) of Pool Receivables for the month prior Parent and the Originators certifying the names and true signatures of the officers of the Parent and the Originators authorized to sign the initial PurchaseOriginator Purchase Agreement and the other documents to be delivered by it thereunder.
(p) Evidence A copy of payment the limited liability company agreement, by-laws or other governance document of each of the Originators, certified 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 respective Secretary or Assistant Secretary or manager 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 A copy of the States certificate of Delaware and California.
(r) Good standing certificates with respect to the Originator issued by the Secretaries formation or certificate or articles of the States incorporation or other governance document of Delaware and California.
(s) An executed Receivables Sale Agreement.
(t) Letters from each of the rating agencies then rating Originators, certified as of a recent date by the Notes Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing 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 reportOriginators from such Secretary of State or other official, dated as of a recent date.
(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 (Centex Construction Products 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 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 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 name each Originator authorized to sign this Agreement as the debtor/seller and the Company as the secured party/purchaser (and the Administrator, 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 Jon▇▇, ▇ay, Rea▇▇▇ & Pog▇▇, ▇ounsel 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 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 certificate from an officer of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the each Originator and the Seller, addressed 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 the initial Purchase under this Agreement.
(o) Monthly Receivables Report representing the performance of the portfolio of Pool Receivables for the month prior most recent, and have taken all steps reasonably necessary to the initial Purchase.
(p) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter)ensure that there shall be placed on each subsequent, 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 data processing report 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.it
Appears in 1 contract
Sources: Purchase and Sale Agreement (Worthington 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 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 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 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 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 Managers of the Seller authorizing the execution, deliveryapproving, and performance by evidence that an authorized officer of EDS, EIS and EPC has, pursuant to delegated authority, approved, this Agreement, 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 copies of all documents evidencing other necessary corporate or limited liability company action and governmental approvals, if any, with respect to this Agreement, the Originator 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 Seller, EDS, EIS and EPC certifying the names and true signatures of the officers of the Seller Seller, EDS, EIS and EPC authorized to sign this Agreement, the Originator Purchase Agreement and the other Transaction Documents (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.
(fc) Acknowledgment copies, copies or time stamped receipt copies of proper financing statements, 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 EDS Contribution 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 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 and any right to payment of any Receivable arising under a Contract previously granted by the Originator Seller, EDS or the Originator, 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 that name the Seller or Seller, EPC, the Originator or EDS as debtor, together with copies of such financing statementsstatements (none of which shall cover any Receivables, Contracts, Related Security or the collateral security referred to in Section 2.11).
(f) Executed copies of (i) the Deposit Account Acknowledgment Agreement and similar search reports (ii) the Lock-Box Agreement (Bank of America) with respect to judgment lienseach Lock-Box Account maintained with Bank of America, 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.N. A.
(i) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(jg) A favorable opinion of Lily Y▇▇ H▇▇▇▇▇ & L▇▇▇, corporate L.L.P., counsel for the Originator Seller, EDS, EPC and the SellerOriginator, addressed to the Administrative Agent, 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) The Fee Agreement.
(i) The Funds Transfer Letter.
(j) An executed copy of the Originator Purchase Agreement.
(k) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇the by-laws of EPC and EDS, counsel for certified by the Originator and the SellerSecretary or Assistant Secretary of EPC or EDS, 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 case may reasonably requestbe.
(l) A favorable opinion copy of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Seller operating agreement or regulations of EIS and the OriginatorSeller, addressed to certified by the Administrative AgentSecretary or Assistant Secretary of EIS or the Seller, 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 case may reasonably requestbe.
(m) A favorable opinion copy of Morristhe certificate or articles of incorporation or the certificate of formation of the Seller, NicholsEPC, Arsht & T▇▇▇▇▇▇, special Delaware counsel for the Originator and EDS, 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 good standing of the Seller, addressed to EPC, the Administrative AgentOriginator and EDS from such Secretary of State or other official, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in the form dated as of Annex H and as to such other matters as the Administrative Agent may reasonably requesta recent date.
(n) Satisfactory results of a review by the Purchasers The opening pro forma balance sheet 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 Seller referred to in existence on the date of the initial Purchase under this AgreementSection 4.01(e).
(o) Monthly Receivables Report representing the performance Executed copies of the portfolio of Pool Receivables for the month prior to the initial PurchaseUndertakings.
(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 An executed copy 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 EDS Contribution 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 (Electronic Data Systems 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 PurchaseEffective Date, the following, each (unless otherwise indicated) dated the Effective 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 Originator approving the Loan 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 Originator;
(b) Certified copies Status certificates for Originator issued as of (i) a recent date by the resolutions Secretary of State of each 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 Sellerstates listed on Schedule 4.1.
(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 Originator's behalf to sign the Loan Documents to be delivered by it (on which certificate the Company and Servicer (if other than 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 Section 4.1(c));
(d) The articles of incorporation of Originator, duly certified by the Secretary of State of Delaware as of a recent date, together with a copy of the by-laws of Originator, each duly certified by the Secretary or an Assistant Secretary of Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed and name Originator authorized to sign this Agreement as the seller/assignor and the other Transaction Documents Company as the purchaser/assignee (other than the Ancillary Documents) to which it will be a party. Until and the Administrative Agent receives a subsequent incumbency certificate from for the Originator benefit of the Secured Parties as assignee of the Company) of the Receivables and Related Security or other similar instruments or documents, as may be necessary or, in form and substance satisfactory to Servicer's or 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 any comparable law of all appropriate jurisdictions to perfect the Company's ownership interest in all Receivables and Related Security in which an ownership interest may be assigned to it hereunder;
(with a first priorityf) the interests Copies of the Administrative Agent proper financing statements (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 statementsForm UCC-3), if any, necessary to release all security interests and other rights of any Person (other than the Seller and the Administrative Agent) person in the Pool Receivables, Contracts any Receivable or any Related Security previously granted by the Originator or the Seller.Originator;
(hg) Completed UCC A written search reports, dated on or shortly before report from a Person satisfactory to Servicer and the date of such initial Purchase, Administrative Agent listing all effective financing statements that name Originator as debtor or assignor and that are filed in the jurisdiction referred jurisdictions in which filings are to in clause (fbe made pursuant to the Section 4.1(e) above that name the Seller or the Originator as debtorabove, together with copies of such financing statementsstatements (none of which shall cover any Receivable or any Related Security except as shall be released pursuant to Section 4.1(f) above), 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 requestAgent;
(h) Favorable opinions of Kaye, showing no such liens on any ▇▇holer, Fierman, Hays & ▇andler, LLP, special counsel to Originator, in the forms of the Pool Assets, Pool Receivables, Contracts or Related Security.Exhibit C; 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 Loan 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 Loan Documents has been satisfied to the Company'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
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 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 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 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 Originator;
(b) Certified copies Good standing certificates 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 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 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 Originator certifying the names and true signatures of the officers authorized on Originator's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Company and Servicer (if other than 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 Originator, duly certified by the Secretary of State of the jurisdiction of Originator=s incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of Originator, each duly certified by the Secretary or an Assistant Secretary of Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have been duly executed and name Originator authorized to sign this Agreement 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 of the Receivables generated by 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 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 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 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.filed against Originator;
(ig) Copies of executed Blocked Account Agreements with the Blocked Account Banks.
(j) A favorable Favorable opinion of Lily Y▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, corporate special counsel for to Originator, in the Originator forms of EXHIBIT C;
(h) Evidence (i) of the 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 Transaction Documents has been satisfied to the Administrative Agent may reasonably request.Company's satisfaction; and
(ki) A favorable opinion certificate from an officer of DOriginator 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 PILGRIM'S PRIDE FUNDING CORPORATION PURSUANT TO A PURCHASE AND CONTRIBUTION AGREEMENT, DATED AS OF June 26, 1998, AMONG PILGRIM'S PRIDE, AND PILGRIM'S PRIDE FUNDING CORPORATION; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO POOLED ACCOUNTS RECEIVABLES CAPITAL CORPORATION, PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF June 26, 1998, AMONG PILGRIM'S PRIDE FUNDING CORPORATION, PILGRIM'S PRIDE, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION AND ▇▇▇▇▇▇▇ ▇▇▇▇ & 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▇▇▇▇▇▇▇SECURITIES, counsel for the Seller and the OriginatorINC., 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
Sources: Purchase and Contribution Agreement (Pilgrims Pride Corp)
Conditions Precedent to Initial Purchase. The initial Initial Purchase after effectiveness of 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, each in form and substance (including the date thereof) satisfactory to the Administrative Agent and each Purchaser Agent:
(a) A counterpart of this the 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 and ▇▇▇▇▇▇▇ authorizing the execution, delivery, delivery and performance by the Seller Seller, each Originator and ▇▇▇▇▇▇▇, as the case may be, of this the 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 the 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 Originator and ▇▇▇▇▇▇▇.
(c) A certificate of the Secretary or Assistant Secretary of the Seller Seller, each Originator and ▇▇▇▇▇▇▇ certifying the names and true signatures of the its officers of the Seller who are authorized to sign this the 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 Seller, each Originator or ▇▇▇▇▇▇▇, as the Administrative Agentcase may be, the Administrative Agent shall be entitled to rely on the last such certificate delivered to it by the Seller, such Originator or ▇▇▇▇▇▇▇, as the case may be.
(d) Certified copies 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 duly executed financing statements, duly filed on or before the date of such initial Purchase in proper form for filing 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 itselfSeller, the Purchaser Agents Agent and the Purchasers) Investors contemplated by the Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale AgreementTransaction Documents.
(ge) Acknowledgment copies, or time time-stamped receipt copies 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 any Originator, ▇▇▇▇▇▇▇ or the Seller.
(hf) Completed UCC search reports, dated on or shortly before the date of such the initial Purchasepurchase hereunder, listing all effective the financing statements filed in the jurisdiction all applicable jurisdictions referred to in clause subsection (fe) above that name any Originator, ▇▇▇▇▇▇▇ or the Seller or the Originator as debtor, together with copies of such other 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 jurisdictions, as the Administrative Agent or any Purchaser Agent may request, showing no such liens Adverse Claims on any of the Pool Assets, Pool Receivables, Contracts or Related Security.
(ig) Copies an executed copy of executed Blocked the Collection Account Agreements with the Blocked Account BanksAgreement.
(jh) A favorable opinion of Lily Y▇▇ Favorable opinions, including a true sale/non-substantive consolidation opinion, in form and substance reasonably satisfactory to the Agent, of: (i) special counsel for the Seller, the Originators and the Servicer, and (ii) ▇▇▇▇▇▇▇ ▇, 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 Seller, the Originator Originators 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 requestServicer.
(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.
(ni) Satisfactory results of a review and audit (performed by the Purchasers representatives of the Seller’s and Co-Agent) of the Originator’s Servicer's collection, operating and reporting systems, the Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Seller’s and the Originator’s Servicer'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 the Agreement.
(oj) A Monthly Receivables Report representing the performance of the portfolio of Receivables Pool Receivables for the month prior to the initial PurchaseFiscal Month ending October 3, 1998.
(pk) 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 and invoiced 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, 5.4 of the Agreement and the Fee Letter and the Engagement Letter.
(ql) The Fee Letter duly executed by the Seller.
(m) Good standing certificates with respect to each of the Seller Seller, the Originators and ▇▇▇▇▇▇▇ issued by the Secretaries Secretary of State (or similar official) of the States state of Delaware each such Person's organization and Californiaprincipal place of business.
(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.
(tn) Letters from each of the rating agencies then rating the Notes of each Conduit Purchaser Liberty Street confirming the rating of its such Notes after giving effect to the transactions transaction contemplated by this the Agreement.
(uo) Receipt and satisfactory review of The other Transaction Documents duly executed by the final Protiviti audit reportparties thereto.
(vp) Evidence that Such other approvals, opinions or 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 terminatedAgent or any Investor may reasonably request.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warnaco Group Inc /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 such Seller to the Blocked Account Banks.
(j) A favorable opinion of Lily Y▇▇ ▇▇▇▇▇▇▇, corporate counsel for the Originator and the effect that such Seller, addressed or the Servicer on behalf of such Seller, has from and after each Applicable Closing Date, reflected in its monthly reporting delivered to the Administrative AgentLenders and/or Co-Agents under the Credit and Security Agreement, each Purchaser, each Purchaser Agent and each Alternate Purchaser substantially in that the form of Annex E and as to such other matters as Receivables Acquired by Buyer from Seller are 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 property 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 AgreementBuyer.
(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 (Boston Scientific Corp)
Conditions Precedent to Initial Purchase. (a) The initial Purchase after effectiveness purchase of a Receivable Interest originated by FMC 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 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.
(cA) A certificate of the Secretary or Assistant Secretary of the Seller and FMC 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 as to 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 laws, (ii) as to the resolutions of the Seller and Originator.
(e) A certificate its Board of the Secretary or Assistant Secretary of the Originator certifying the names and true signatures of the officers of the Originator authorized to sign Directors approving this Agreement and the other Transaction Program Documents (other than the Ancillary Documents) to which it will be is a party. Until party and the Administrative Agent receives a subsequent transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Program Documents are true and correct, and (iv) the incumbency certificate from and specimen signature of each of its officers authorized to execute 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 OriginatorProgram Documents.
(fB) Acknowledgment copies, copies or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial Purchase transfer 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 interests of in the Administrative Agent (on behalf of itself, the Purchaser Agents Pool Receivables originated by FMC and the Purchasers) Related Security with respect thereto contemplated by the this Agreement and to perfect (with a first priority) the interests of the Seller as contemplated by the Receivables Sale First-Tier Agreement.
(gC) 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 (other than the Seller and the Administrative Agent) in the Pool Receivables, Contracts or Related Security previously granted by the Originator or the SellerFMC.
(hD) Completed UCC search reportsrequests for information, dated on or shortly before the date of such initial Purchasetransfer, listing the financing statements referred to in subsection (C) above and all other effective financing statements filed in the jurisdiction jurisdictions referred to in clause subsection (fC) above that name the Seller or the Originator FMC as debtor, together with copies of such other 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).
(iE) Copies Fully executed copies of executed Blocked Account Agreements with the Blocked Account BanksProgram Documents which shall each be in full force and effect.
(jF) A favorable opinion An executed copy of Lily Y▇▇ ▇▇each FMC Deposit Agreement and each Seller Deposit Agreement.
(G) Favorable opinions of ▇▇▇▇▇, 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 OriginatorFMC, 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, including without limitation as to the "true sale" nature of transfer of the Receivables contemplated by the First-Tier Agreement.
(mH) The Agent shall have received a pro-forma Investor Report, which shall evidence compliance with the terms of the Program Documents, after giving credit to the initial transfer of an interest in Receivables under this Agreement.
(I) FMC shall have established the FMC Deposit Accounts and Lock-Boxes and the Seller shall have established the Seller Deposit Agreements and Lock-Boxes.
(J) The conditions precedent set forth in Section 3.01(a) of the First-Tier Agreement shall have been fully satisfied.
(b) The initial purchase of a Receivable Interest originated by FMCW under this Agreement is subject to the conditions precedent that the Agent shall have received on or before the date of such purchase the following, each (unless otherwise indicated) dated such date, in form and substance satisfactory to the Agent:
(A) A favorable opinion certificate of Morristhe Secretary or Assistant Secretary of FMCW certifying (i) as to its certificate of incorporation and by-laws, Nichols(ii) as to the resolutions of its Board of Directors approving the Program Documents to which it is a party and the transactions contemplated hereby and thereby, Arsht & T▇(iii) that its representations and warranties set forth in the First-Tier Agreement are true and correct, and (iv) the incumbency and specimen signature of each of its officers authorized to execute the Program Documents.
(B) Acknowledgment copies or time stamped receipt copies of proper financing statements, duly filed on or before the date of such initial transfer under the UCC of all jurisdictions that the Agent may deem necessary or desirable in order to perfect the ownership interests in the Pool Receivables (including the Pool Receivables originated by FMCW) and the Related Security with respect thereto contemplated by this Agreement and the First-Tier Agreement.
(C) Acknowledgment copies or time stamped receipt copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Receivables originated by FMCW or Contracts or Related Security with respect thereto previously granted by FMCW.
(D) Completed requests for information, dated on or before the date of such initial transfer, listing the financing statements referred to in subsection (C) above and all other effective financing statements filed in the jurisdictions referred to in subsection (C) above that name FMCW as debtor, together with copies of such other financing statements (none of which shall cover any Receivables, Contracts or Related Security).
(E) Favorable opinions of ▇▇▇▇▇, special Delaware ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Originator Seller and the SellerFMCW, 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 , including without limitation as to the "true sale" nature of a review transfer of the Receivables contemplated 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 First-Tier Agreement.
(oF) Monthly Receivables Report representing Such other instruments, certificates and documents as the performance of the portfolio of Pool Receivables for the month prior to the initial PurchaseAgent may have reasonably requested.
(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.
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