Conditions to Purchase. The obligations of the Purchaser to purchase and pay for the Certificates being purchased by it hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, of the following conditions: (a) the representations and warranties of the Trustee and the Settlors contained in the Basic Documents shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect; (b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV; (c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser; (d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect; (e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date; (f) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer and the Settlors; (g) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor; (h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents; (i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require; (j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date; (k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates; (l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; and
Appears in 2 contracts
Sources: Purchase Agreement (Vitro Sa De Cv), Purchase Agreement (Vitro Sa De Cv)
Conditions to Purchase. The obligations No Note Purchaser will have an obligation to purchase the Notes or fund such Note Purchaser’s Initial Stated Percentage Interest of the Purchaser to purchase and pay for the Certificates being purchased by it Initial Draw hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, of the following conditionsDate unless:
(a) the representations and warranties each of the Trustee and the Settlors contained in the Basic Documents shall be true in full force and correct in effect and all material respects on consents, waivers and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements approvals necessary for the consummation of the transactions contemplated hereby and thereby by the Basic Documents shall have been executed obtained and delivered on or prior shall be in full force and effect;
(b) at the time of such issuance, all conditions to the Closing Date in a form satisfactory issuance of the Notes under the Indenture and under Section 2.1(b) of the Sale and Servicing Agreement shall have been satisfied and all conditions to the initial Draw set forth under Section 6.02 hereof have been satisfied;
(c) such Note Purchaser shall have received a duly executed, authorized and authenticated Note registered in its name and stating that the principal amount thereof shall not exceed such Note Purchaser’s Initial Stated Percentage Interest of the Aggregate Committed Amount;
(d) at the Closing Date, (i) there Notes purchased by such Note Purchaser hereunder shall have been no material adverse change, or any development involving a prospective material adverse change, be entitled to the benefit of the security provided in the condition (financial or otherwise)Indenture and shall constitute the legal, business prospects, results of operations or business affairs valid and binding obligations of the Settlors taken as a whole since December 31Issuer, 2004, and (ii) there shall have been delivered to enforceable against the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effectIssuer in accordance with their terms;
(e) the Certificates no Material Adverse Change shall have been executedoccurred with respect to CPS or the Issuer since September 30, authenticated 2009;
(f) such Note Purchaser shall have received:
(i) a duly executed and delivered original counterpart of each Basic Document (other than any Basic Document that contemplates delivery on a date after the Closing Date), each such document being in full force and effect;
(ii) certified copies of charter documents and each amendment thereto, and resolutions of the Board of Directors or like authority of each of the Issuer and the Servicer authorizing or ratifying (A) the execution, delivery and performance, respectively, of all Basic Documents to which it is a party, (B) the issuance of Notes contemplated hereunder and (C) the grant of the security interest contemplated under the Indenture, certified by the Secretary or an Assistant Secretary (or like officer) of each of the Issuer and the Servicer as of the Closing Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary or an Assistant Secretary of the Issuer and the Servicer, as applicable, certifying the names and the signatures of its officer or officers authorized to sign all transaction documents to which it is a party;
(iv) a certificate of a senior officer of CPS to the effect that the representations and warranties of the Seller and the Servicer in this Agreement and the other Basic Documents to which it is a party are true and correct as of the Closing Date, and that the Seller and the Servicer have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date;
(fv) a certificate of a senior officer of the Issuer to the effect that the representations and warranties of the Issuer in this Agreement and the other Basic Documents to which it is a party are true and correct as of the Closing Date and that the Issuer has complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date;
(vi) legal opinions (including opinions relating to true sale, there shall have been delivered to the Purchasernon-consolidation, UCC, securities laws, enforceability and corporate matters) in form and substance satisfactory to the such Note Purchaser, opinions of counsel with respect ;
(vii) evidence satisfactory to such matters as Note Purchaser of completion of all necessary UCC filings and search reports;
(viii) payment of the Purchaser may reasonably request from: Placement Agent’s fees and other reasonable out-of-pocket fees and expenses in accordance with the Placement Agency Agreement;
(iix) Forastieri Abogadoscopies of certificates or other evidence from the Secretary of State or other appropriate authority of the States of Delaware and California, S.C., Mexican counsel to evidencing the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to good standing of the Issuer and the Settlors;
(g) on or Servicer in the States of Delaware and California, in each case, dated no earlier than 10 days prior to the Closing Date, there ; and
(x) each of the Issuer and CPS shall have been delivered to such Note Purchaser an Officer’s Certificate dated the PurchaserClosing Date, to the effect that the signer of such certificate has carefully examined the CPS Information and the Memorandum and that, to the best of such signer’s knowledge the Memorandum and the CPS Information as of its date and as of the Closing Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(xi) such other documents, opinions and information as such Note Purchaser may reasonably request; and
(g) KPMG LLP or another firm of independent accountants shall furnish to such Note Purchaser a letter or letters, dated as of the date of the Memorandum, and as of the Closing Date, substantially in the forms of the drafts to which such Note Purchaser has previously agreed and otherwise in form and substance satisfactory to the such Note Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor;.
(h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there such Note Purchaser shall have been delivered completed to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each its satisfaction its due diligence review of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) Servicer and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) respective management, controlling stockholders, systems, underwriting, servicing and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andcollection operations, static pool performance and its loan files.
Appears in 1 contract
Sources: Note Purchase Agreement (Consumer Portfolio Services Inc)
Conditions to Purchase. The obligations of the Class A Note Purchaser will have no obligation to purchase the amended and pay for the Certificates being purchased by it restated Class A Notes hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, of the following conditionsunless:
(a) the representations and warranties each of the Trustee and the Settlors contained in the Basic Documents shall be true in full force and correct in effect and all material respects on consents, waivers and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements approvals necessary for the consummation of the transactions contemplated hereby and thereby by the Basic Documents shall have been executed obtained and delivered shall be in full force and effect;
(b) at the time of such issuance, all conditions to the issuance of the Class A Notes under the Indenture and under SECTION 2.1(b) of the Sale and Servicing Agreement shall have been satisfied and all conditions to the initial Class A Advance set forth under SECTION 6.02 hereof have been satisfied;
(c) the Class A Note Purchaser shall have received a duly executed, authorized and authenticated Class A Note registered as provided in Section 2.01 and stating that the principal amount thereof shall not exceed the Class A Maximum Invested Amount;
(d) the Issuer shall have paid all fees required to be paid by it on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Datedate hereof, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, including all fees required under SECTIONS 3.01 and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect3.02 hereof;
(e) the Certificates Class A Notes purchased by the Class A Note Purchaser hereunder shall have been executed, authenticated and delivered on or prior be entitled to the Closing Datebenefit of the security provided in the Indenture and shall constitute the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(f) no Material Adverse Change shall have occurred with respect to CPS or the Issuer since September 30, 2006;
(g) the Class A Note Purchaser shall have received:
(i) a duly executed and delivered original counterpart of each Basic Document (other than any Basic Document that contemplates delivery on a date that is after the Class B Closing Date), each such document being in full force and effect;
(ii) certified copies of charter documents and each amendment thereto, and resolutions of (A) the Board of Directors or other governing authority of each of the Issuer and the Servicer authorizing or ratifying the execution, delivery and performance, respectively, of all Basic Documents to which it is a party, (B) the issuance of Class A Notes contemplated hereunder and the issuance of the Class B Notes contemplated under the Class B Note Purchase Agreement and (C) the granting of the security interests contemplated under the Basic Documents, certified by the Secretary or an Assistant Secretary of each of the Issuer and the Servicer as of the Class A Closing Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary or an Assistant Secretary of the Issuer and the Servicer, as applicable, certifying the names and the signatures of its officer or officers authorized to sign all transaction documents to which it is a party;
(iv) a certificate of a senior officer of CPS to the effect that the representations and warranties of the Seller and the Servicer in this Agreement and the other Basic Documents to which it is a party are true and correct as of the date hereof, and that the Seller and the Servicer have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the date hereof;
(v) a certificate of a senior officer of the Issuer to the effect that the representations and warranties of the Issuer and the Purchaser in this Agreement and the other Basic Documents to which it is a party are true and correct as of the Class A Closing Date and that the Issuer and the Purchaser have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the date hereof;
(vi) legal opinions (including opinions relating to true sale, non-consolidation, UCC, enforceability and corporate matters, any of which may take the form of a "bring-down" opinion from the opinions issued on the Class A Closing Date, there shall have been delivered to the Purchaser, ) in form and substance satisfactory to the Class A Note Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer and the Settlors;
(gvii) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance evidence satisfactory to the Class A Note Purchaser of completion of all necessary UCC filings and search reports;
(viii) payment of Class A Note Purchaser, a copy of a notarized power's reasonable out-of-attorney relating to the authority of each Settlorpocket fees and expenses in accordance with SECTION 3.02(c) hereof;
(hix) on copies of certificates (long form) or prior to other evidence from the Closing DateSecretary of State or other appropriate authority of the States of Delaware and California, evidencing the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each good standing of the Issuer and the Settlors as Servicer in the States of Delaware and California, in each case, dated no earlier than 15 days prior to the authority, incumbency and specimen signatures Class B Closing Date;
(x) copies (which may be delivered in electronic format) of the persons who have executed any commitment or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by agreement between the Issuer and the SettlorsServicer and any lender or other financial institution, and other than any such commitment or agreement (or portion thereof) which the Class A Note Purchaser specifically agrees are not required to be delivered hereunder; and
(xi) such other documents, opinions and certificates information as the Class A Note Purchaser or its counsel may reasonably require;request; and
(jh) there the Class A Note Purchaser shall have been delivered completed to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each its satisfaction its due diligence review of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) Servicer and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) respective management, controlling stockholders, systems, underwriting, servicing and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andcollection operations, static pool performance and its loan files.
Appears in 1 contract
Sources: Note Purchase Agreement (Consumer Portfolio Services Inc)
Conditions to Purchase. The obligations obligation of the each Purchaser to purchase and pay for a Note or Notes at the Certificates being purchased by it hereunder are, at its option, Closing is subject to the satisfaction, on or before the Closing Date, satisfaction of such of the following conditionsconditions as shall not have been expressly waived by such Purchaser:
(a) the fact that, immediately before and after such purchase, no Default shall have occurred and be continuing;
(b) the fact that the representations and warranties of the Trustee and the Settlors Issuer contained in the Basic Documents shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties this Agreement shall be true and correct on and as of the date of such date, purchase and before and after giving effect to the Purchaser shall received a certificate dated the closing date from an officer of each issuance and purchase of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBVNotes;
(c) each Basic Document and any other agreements necessary for the consummation receipt by such Purchaser of a Note duly executed on behalf of the transactions contemplated hereby Issuer and thereby shall have been executed and delivered on or prior to dated the Closing Date date of such purchase, substantially in a the form satisfactory to the Purchaserof Exhibit A hereto;
(d) at receipt by such Purchaser of an opinion of Bake▇ & ▇ott▇, counsel for the Closing DateIssuer, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, substantially in the condition (financial or otherwise), business prospects, results form of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effectExhibit B hereto;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions receipt by such Purchaser of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) an opinion of Lisa ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇naging Counsel for the Issuer, substantially in the form Of Exhibit C hereto;
(f) receipt by such Purchaser of an opinion of Milbank, Tweed, Hadl▇▇ y & ▇▇▇cCl▇▇, S.C.▇▇ecial counsel for the Purchasers, Mexican counsel to substantially in the Issuer and the Settlorsform of Exhibit D hereto;
(g) on receipt by such Purchaser of a certificate signed by the chief financial officer or prior the treasurer of the Issuer, to the Closing Date, there shall have been delivered to the Purchaser, effect set forth in form clauses (a) and substance satisfactory to the Purchaser, a copy (b) of a notarized power-of-attorney relating to the authority of each SettlorSection 3.01;
(h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the purchase of Notes by such Purchaser shall (i) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (ii) not violate any applicable law or regulation (including, without limitation, Regulation G, T or X of the Board of Governors of the Federal Reserve System) and (iii) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof; and, if requested by any Purchaser, such Purchaser shall have received from CT Corporation System a certificate of the chief financial officer, principal accounting officer, treasurer or comptroller of the Issuer or of any other officer of the Issuer whose responsibilities extend to the subject matter of such certificate, certifying as to such matters of fact (but in no event as to a legal conclusion with respect thereto) as such Purchaser may reasonably specify in a form to be provided by such Purchaser, to enable such Purchaser to determine whether such purchase is so permitted;
(i) a letterwithout limiting the provisions of Section 8.03, dated the Issuer shall have paid on or before the Closing Date the fees, charges and disbursements of special counsel for the Purchasers referred to in paragraph (f) above to the extent reflected in a statement of such counsel rendered to the Issuer at least one Business Day prior to the Closing Date Date;
(j) evidence satisfactory to such Purchaser of the receipt of a Private Placement Number for the Notes from the CUSIP Bureau of Standard & Poor's;
(k) the fact that the Issuer shall have issued and sold $100,000,000 in aggregate principal amount of Notes hereunder (taking into account the Notes to be purchased by such Purchaser); and
(l) receipt by such Purchaser of all documents it or its special counsel may reasonably request relating to the effect that is accepts the appointment to receive on behalf existence of the Issuer Issuer, the corporate authority for and the Settlors, respectively, service validity of process which may be served in any legal action or proceeding arising out of or in connection with the Basic DocumentsNotes and this Agreement, and (ii) a copy of the public deed or public deeds granted by the Trusteeany other matters relevant hereto, all in its capacity as Trustee, form and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code substance satisfactory to special counsel for the Federal District of Mexico (Código Civil para el Distrito Federal) Purchasers. The documents and its correlative sections of opinions referred to in this Article III shall be delivered to each Purchaser no later than the Federal Civil Code of Mexico (Código Civil Federal) Closing Date. The certificate and opinions referred to above shall be dated the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andClosing Date.
Appears in 1 contract
Conditions to Purchase. The obligations of the Purchaser to purchase and pay for the Certificates being purchased by it hereunder are, at its option, subject following shall be conditions precedent to the satisfaction, on or before the Closing Date, of the following conditionsPurchase:
(a) the representations The Notes shall have been duly authorized, executed, authenticated, delivered and warranties issued and, upon payment of the Trustee Purchase Price, shall be entitled to the benefits of the Indenture. This Agreement and each of the Settlors other Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and all conditions precedent contained in the Basic Transaction Documents shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;have been satisfied.
(b) on or prior to the Closing Date, there The Purchasers shall have been delivered to the Purchaser in form received a written legal opinion under United States and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the PurchaserNew York State law, in form and substance satisfactory to the PurchaserPurchasers, opinions from each of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇▇ ▇▇▇▇▇, & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇LLP, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇covering corporate, S.C.enforceability, Mexican Lien perfection, non-contravention of law, no required approvals, no registration, Investment Company Act and such other matters as the Purchasers may reasonably request and (ii) general counsel to of the Issuer Obligors, covering non-contravention of material agreements and absence of material litigation.
(c) The Purchasers and the Settlors;Indenture Trustee shall have each received signature and incumbency certificates executed by the authorized officers of each of the Guarantors and the Issuer, to enable each of them to enter into the Transaction Documents to which such entity is a party.
(gd) The Purchasers and the Indenture Trustee shall have received a closing certificate from each Obligor, including (i) the certificate of incorporation or articles of organization of such Obligor, as applicable, certified by the relevant authority of the jurisdiction of organization of such Obligor, (ii) certified bylaws or other operating agreement, as applicable, of such Obligor and (iii) a good standing certificate for such Obligor from its jurisdiction of organization.
(e) The costs and expenses incurred by any Purchaser on or prior to the Closing Date, there Issue Date and described in the first sentence of Section 3 of the Commitment Letter shall have been delivered reimbursed to such Purchaser, or paid directly, by the Issuer. Such costs and expenses shall be set forth on a “closing schedule of fees and expenses” approved by the Purchasers and the Issuer and submitted by the Issuer to the Purchaser, Indenture Trustee with appropriate wire instructions.
(f) The representations and warranties of the Issuer set forth or referred to in form Section 3.1 hereof and substance satisfactory to in the Purchaser, a copy other Transaction Documents shall be true and correct on the Issue Date.
(g) No Default or Event of a notarized power-of-attorney relating to the authority of each Settlor;Default has occurred and is continuing.
(h) on or prior to All corporate and other proceedings in connection with the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents transactions contemplated hereby and the other instruments Transaction Documents and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other all documents, opinions and certificates as incident thereto shall be satisfactory in form and in substance to the Purchaser or its counsel may reasonably require;Purchasers.
(i) The Indenture Trustee shall have received the initial Budget, Portfolio Premium Schedule and Cash Balance Report due on the Issue Date in accordance with the terms of the Indenture. The initial Budget (but not such other documents) shall be provided to the Purchasers.
(j) there All governmental and third party approvals necessary in connection with the continuing operations of the Group Companies and the transactions contemplated hereby shall have been delivered obtained and be in full force and effect.
(k) The Purchasers and the Indenture Trustee shall have received the results of a recent Lien search with respect to each Obligor, and such search shall reveal no Liens on any of the assets of the Obligors except for Permitted Liens, to the Purchaser a certificateextent such Permitted Liens may be present on such assets under the Indenture.
(l) The Indenture Trustee shall have received the certificates representing the Pledged Collateral as defined in and pledged pursuant to the Pledge Agreement, dated the Closing Date, signed together with an undated stock power for each such certificate executed in blank by a duly authorized officer of each of the Issuer and pledgor thereof. UCC financing statements contemplated by the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there Security Documents shall have been delivered recorded in the appropriate filing office.
(m) The Issuer shall have obtained, and provided to the Purchaser Purchasers, a copy of any notarized power-of-attorney of CUSIP number for the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;Notes.
(ln) on the Closing Date, the Purchaser The Issuer shall have received from CT Corporation System provided the Securities Intermediary with certified tax identification numbers by furnishing appropriate forms W-9 or W-8 and such other forms and documents that the Securities Intermediary may request.
(io) Unless a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections waiver shall have been obtained in accordance with Section 2.2, the first paragraph of section 2,554 Issuer’s acceptance of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections proceeds of the Federal Civil Code of Mexico (Código Civil Federal) and Note issued on the Civil Codes of Issuance Date shall be deemed its acknowledgement that the States of Mexico in favor conditions to closing set forth herein have been complied with or otherwise waived as of such agent for service of process are notarized; anddate.
Appears in 1 contract
Conditions to Purchase. The obligations of the Purchaser to purchase and pay for the Certificates Notes being purchased by it hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, of the following conditions:;
(a) the representations and warranties of the Trustee and the Settlors contained herein and in the Basic Documents shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received receive a certificate dated on the closing date Closing Date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities Notes with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates Notes shall have been issued executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer and the Settlors;
(g) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect Settlors, certifying that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder and under the Basic Documents to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; and
Appears in 1 contract
Sources: Purchase Agreement (Vitro Sa De Cv)
Conditions to Purchase. The obligations of the Purchaser to purchase and pay for the Certificates being purchased by it hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, of the following conditions:
(a) Buyer's obligation to purchase the representations Property is conditioned on the following: (a) Buyer’s satisfaction with the Property and warranties Buyer’s financing, including without limitation the terms and conditions of Seller’s loan to be assumed by Buyer, (b) the approval of Seller’s lender to Buyer’s assumption of the Trustee Seller’s loan on terms acceptable to Buyer in Buyer’s sole discretion, and the Settlors contained (c) Buyer's review and approval of Seller’s Documents (as defined in the Basic Documents shall be true Section 5 below) and correct in all material respects on and as approval of the Closing results of its property inspection described in Section 4 below. If Buyer has not given written waiver of these conditions, or stated in writing that these conditions have been satisfied, by written notice given to Seller within twenty-one (21) days after the Execution Date as if made on and as (the “Due Diligence Ó 1997 Commercial Association of such dateREALTORSÒ Portland/Vancouver (Rev. 9/97) Period”), except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties Agreement shall be true and correct on and as of such dateautomatically terminate, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇E▇▇▇▇▇▇ ▇▇▇▇▇▇Money shall be promptly returned to Buyer. Seller shall reasonably cooperate and assist with obtaining the consent of its lender to such loan assumption by Buyer. It shall be a condition to Buyer’s obligation to close this transaction that Seller shall have delivered to Buyer prior to the closing an estoppel certificate from all tenants of the Property certifying that such tenants’ leases are in full force and effect and there is no breach or default thereunder, ▇▇and other information as Buyer shall reasonably require. At all times before the Closing Date, Seller shall cooperate with Buyer in connection with obtaining governmental approvals, entitlements, consents, and permits in connection with Buyer's purchase and operation of the Property, without cost or expense to Seller. This includes, without limitation, joining in proceedings for and/or the execution of petitions, applications, zone changes, easements, permits, approvals, conditional uses, licenses, dedications, and other land use-related matters as reasonably approved by Seller and provided that the same are not effective unless the purchase and sale closes as contemplated herein.
(b) Seller’s obligation to sell the Property is conditioned upon being released from all liability arising under or in connection with the Assumed Loan after the Closing Date. Buyer’s obligation to purchase the Property is conditioned on completing the assumption of the Assumed Loan at Closing. In the event that either of these conditions is not satisfied, this Agreement shall immediately terminate and the E▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer and the Settlors;
(g) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on or prior to the Closing Date, the Trust Assets Money shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior promptly returned to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andBuyer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Conditions to Purchase. The obligations of the Note Purchaser will have no obligation to purchase and pay for the Certificates being purchased by it Notes hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, of the following conditionsunless:
(a) the representations and warranties each of the Trustee and the Settlors contained in the Basic Documents shall be true in full force and correct in effect and all material respects on consents, waivers and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements approvals necessary for the consummation of the transactions contemplated hereby and thereby by the Basic Documents shall have been executed obtained and delivered on or prior shall be in full force and effect;
(b) at the time of such issuance, all conditions to the Closing Date in a form satisfactory issuance of the Notes under the Indenture and under SECTION 2.1(B) of the Sale and Servicing Agreement shall have been satisfied and all conditions to the Purchaserinitial Advance set forth under SECTION 6.02 hereof have been satisfied;
(c) the Note Purchaser shall have received a duly executed, authorized and authenticated Note registered in its name and stating that the principal amount thereof shall not exceed the Maximum Invested Amount;
(d) at the Issuer shall have paid all fees required to be paid by it on the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effectincluding all fees required under SECTION 3.01 hereof;
(e) the Certificates Notes purchased by the Note Purchaser hereunder shall be entitled to the benefit of the security provided in the Indenture and shall constitute the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(f) no Material Adverse Change shall have been executedoccurred with respect to CPS or the Issuer since September 30, authenticated 2005;
(g) the Note Purchaser shall have received:
(i) a duly executed and delivered original counterpart of each Basic Document (other than any Basic Document that contemplates delivery on a date after the Closing Date), each such document being in full force and effect;
(ii) certified copies of charter documents and each amendment thereto, and resolutions of (A) the Board of Directors of each of the Issuer and the Servicer authorizing or ratifying the execution, delivery and performance, respectively, of all Basic Documents to which it is a party, (B) the issuance of Notes contemplated hereunder and (C) the granting of the security interest contemplated under the Indenture, certified by the Secretary or an Assistant Secretary of each of the Issuer and the Servicer as of the Closing Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary or an Assistant Secretary of the Issuer and the Servicer, as applicable, certifying the names and the signatures of its officer or officers authorized to sign all transaction documents to which it is a party;
(iv) a certificate of a senior officer of CPS to the effect that the representations and warranties of the Seller and the Servicer in this Agreement and the other Basic Documents to which it is a party are true and correct as of the Closing Date, and that the Seller and the Servicer have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date;
(fv) a certificate of a senior officer of the Issuer to the effect that the representations and warranties of the Issuer and the Purchaser in this Agreement and the other Basic Documents to which it is a party are true and correct as of the Closing Date and that the Issuer and the Purchaser have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date;
(vi) legal opinions (including opinions relating to true sale, there shall have been delivered to the Purchasernon-consolidation, UCC, enforceability and corporate matters) in form and substance satisfactory to the Note Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: ;
(ivii) Forastieri Abogados, S.C., Mexican counsel evidence satisfactory to the Note Purchaser of completion of all necessary UCC filings and search reports;
(viii) payment of Note Purchaser; 's reasonable out-of-pocket fees and expenses in accordance with SECTION 3.01(C) hereof;
(iiix) ▇▇▇▇ ▇▇▇▇▇copies of certificates (long form) or other evidence from the Secretary of State or other appropriate authority of the States of Delaware and California, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to evidencing the good standing of the Issuer and the Settlors;
(g) on or Servicer in the States of Delaware and California, in each case, dated no earlier than 15 days prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(hx) on copies (which may be delivered in electronic format) of any commitment or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of agreement between the Issuer and the Settlors as to Servicer and any lender or other financial institution, other than any such commitment or agreement (or portion thereof) which the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents Note Purchaser specifically agrees are not required to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and hereunder; and
(xi) such other documents, opinions and certificates information as the Note Purchaser or its counsel may reasonably require;request; and
(jh) there the Note Purchaser shall have been delivered completed to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each its satisfaction its due diligence review of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) Servicer and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) respective management, controlling stockholders, systems, underwriting, servicing and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andcollection operations, static pool performance and its loan files.
Appears in 1 contract
Sources: Note Purchase Agreement (Consumer Portfolio Services Inc)
Conditions to Purchase. The obligations of the Purchaser shall not be obligated to purchase and pay for the Certificates being purchased by it any Receivable hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, until each of the following conditionsconditions shall have been satisfied:
(a) the Purchaser shall have received (i) an amendment to the UCC-1 financing statements filed in connection with the Original Agreement, executed by the Seller, naming the Seller as assignor of the Purchased Receivables and Related Assets and the Purchaser as the transferee and assignee thereof, and (ii) such other similar instruments and documents as in the opinion of the Purchaser may be necessary or desirable under applicable law to perfect the Purchaser's interest in all the Purchased Receivables and Related Assets;
(b) the representations and warranties of the Trustee and the Settlors contained in the Basic Documents Section 4.01 hereof shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby no Termination Event shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaseroccurred;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer and the Settlors;
(g) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, any Receivable that is a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing DateMortgage Loan, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or the following described instruments and documents prior to the Closing Date on which the applicable Mortgage Loan is being purchased hereunder:
(i) the original Mortgage Note evidencing such Mortgage Loan, duly endorsed in blank as follows: "Pay to the effect that is accepts the appointment to receive on behalf order of the Issuer and the Settlors____________________________________, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and without recourse NEW CENTURY MORTGAGE CORPORATION By __________________________________ Title _______________________________"
(ii) a copy of the public deed or public deeds granted Mortgage securing such Mortgage Loan, certified by the Trusteeclosing agent to be a true and exact copy of the original Mortgage as submitted for recording;
(iii) a duly executed appropriate assignment of said Mortgage in blank and in recordable form;
(iv) if there are any intermediate assignments of said Mortgage, two copies of each such assignment, certified by the closing agent or the Seller to be a true and exact copy of the original thereof as submitted for recording;
(v) if any of the foregoing documents was executed on behalf of a party thereto by another Person under a power of attorney, a copy of the original executed copy of such power of attorney, certified by the closing agent to be a true and exact copy of the original thereof;
(vi) if requested by the Purchaser, a copy of the closing agent's settlement statement for such Mortgage Loan; and
(vii) if requested by the Purchaser, a completed Seller Worksheet Concerning Applicability of Section 32 of Regulation Z (12 CFR Section 226.32) and, if said Section 32 applies, copies of the disclosure and other related documentation delivered to the mortgagor, or executed by the mortgagor, evidencing compliance with said Section 32; and
(e) the Purchaser shall have received such additional agreements, documents and instruments as it may request, in its capacity as Trusteesole discretion, and by from the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andSeller.
Appears in 1 contract
Conditions to Purchase. The Purchasers’ respective obligations of the Purchaser to purchase and pay for the Certificates being purchased by it hereunder are, at its option, subject Senior Incremental Notes pursuant to this Agreement shall become effective only upon the satisfaction, on or before the Closing Date, satisfaction of all of the following conditionsconditions precedent:
(a) On or before the representations Purchase Date, Company, Parent and warranties Guarantors shall deliver to the Purchasers the following, each, unless otherwise noted, dated the Purchase Date:
i. copies of all amendments to the Organizational Documents of such Person executed on or after July 17, 2006, in each case, certified by the Secretary of State of its jurisdiction of organization or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of such Person, together with a good standing certificate from the Secretary of State of its jurisdiction of organization and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of such jurisdiction, each dated a recent date prior to the Purchase Date;
ii. resolutions of its board of directors, manager or sole member, as the case may be, approving and authorizing the execution, delivery, and performance of this Agreement and approving and authorizing the execution, delivery and payment of the Trustee and the Settlors contained in the Basic Documents shall be true and correct in all material respects on and Senior Incremental Notes, certified as of the Closing Purchase Date by its corporate secretary or an assistant secretary as if made on being in full force and as effect without modification or amendment;
iii. signature and incumbency certificates of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such dateits officers executing this Agreement, and the Purchaser shall received a certificate dated the closing date from an officer Senior Incremental Notes; and
iv. original executed copies of each of the Issuer this Agreement and the Settlors to such effect;Senior Incremental Notes.
(b) on or prior to The Purchasers and the Closing Date, there Collateral Agent shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies received a favorable written opinion of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing DateWeil, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇Gotshal & ▇▇▇▇▇▇ ▇▇▇▇▇▇LLP, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇counsel for Company, S.C.Parent and Guarantors, Mexican counsel in the form attached as Exhibit A hereto, dated as of the Purchase Date, with respect to the Issuer enforceability of the Senior Incremental Notes and the Settlors;other Notes, this Agreement, the other Note Documents and as to such other matters as the Purchasers and the Collateral Agent may reasonably request.
(gc) on On or prior to before the Closing Purchase Date, there all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by any Purchaser or its counsel shall have been delivered to the Purchaser, be satisfactory in form and substance satisfactory to such Purchaser and such counsel, and such Purchaser and such counsel shall have received all such counterpart originals or certified copies of such documents as such Purchaser may reasonably request.
(d) After giving effect to the Purchasertransactions contemplated by this Agreement, a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on no Default or prior Event of Default (each as defined under the Note Documents) shall have occurred and be continuing under the Note Documents or result from this Agreement becoming effective in accordance with its terms, (ii) no Default or Event of Default (each as defined under the Second Lien Documents) shall have occurred and be continuing under the Second Lien Documents or result from this Agreement becoming effective in accordance with its terms, and (iii) no Default or Event of Default (each as defined under the Exchange Note Documents) shall have occurred and be continuing under the Exchange Note Documents or result from this Agreement becoming effective in accordance with its terms, and Company shall have delivered an officer’s certificate to such effect.
(e) Company shall use the net proceeds from the sale of the Senior Incremental Notes solely to fund the operations of Company in the ordinary course of business and not for any other purpose including the acquisition of any business or assets (it being understood that Company may make Permitted Investments pursuant to clause (viii) of the definition of “Permitted Investments”) or for the repayment of any Indebtedness. For the avoidance of doubt, Section 4.9 of the First Lien Purchase Agreement shall not apply to the Closing Date, there shall have been delivered issuance of the Senior Incremental Notes pursuant to this Agreement.
(f) Without limiting any obligation of Company to reimburse the expenses pursuant to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each terms of the Issuer and the Settlors as to the authorityNote Documents, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect Company hereby agrees that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Purchase Date;
(k) there , Company shall have been delivered to the reimburse each Purchaser a copy of for any notarized powerand all out-of-attorney of the Trustee whereby officers of the Trustee are appointed pocket expenses (including reasonable attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable ’ fees) incurred by such Purchaser in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer this Agreement and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andmatters related hereto.
Appears in 1 contract
Sources: First Lien Senior Incremental Notes Agreement (NextWave Wireless Inc.)
Conditions to Purchase. The obligations of the Purchaser Buyer's obligation to purchase and pay for the Certificates being purchased by it hereunder are, at its option, subject to Property is conditioned on the satisfaction, on or before the Closing Date, of the following conditions:
following: (a) Buyer’s satisfaction with the representations Property and warranties Buyer’s financing, including without limitation the terms and conditions of Seller’s loan to be assumed by Buyer, (b) the approval of Seller’s lender to Buyer’s assumption of the Trustee Seller’s loan in accordance with the terms of such loan, and the Settlors contained (c) Buyer's review and approval of Seller’s Documents (as defined in the Basic Documents shall be true Section 5 below) and correct in all material respects on and as approval of the Closing results of its property inspection described in Section 4 below. If Buyer has not given written waiver of these conditions, or stated in writing that these conditions have been satisfied, by written notice given to Seller (“Notice of Intent to Close”) within twenty-one (21) days after the Execution Date as if made on and as of such date(the “Due Diligence Period”), except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties Agreement shall be true and correct on and as of such dateautomatically terminate, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel Money shall be promptly returned to Buyer. If Buyer shall require additional time to satisfy the above conditions or to Ó 1997 Commercial Association of REALTORSÒ Portland/Vancouver (Rev. 9/97) complete its due diligence related to the Issuer and environmental condition of the Settlors;
(g) on Property or to complete Buyer’s ALTA survey of the Property, then, upon written notice to Seller, given upon or prior to the then end of the Due Diligence Period, Buyer shall have the right to extend the Due Diligence Period until the close of business on January 31, 2010. If a Notice of Intent to Close is given by Buyer prior to expiration of the Due Diligence Period, then the conditions set forth in clauses (a)-(c) above shall be deemed satisfied. Seller shall reasonably cooperate and assist with obtaining the consent of its lender to such loan assumption by Buyer. It shall be a condition to Buyer’s obligation to close this transaction that Seller’s lender is ready, willing and able to allow Buyer to assume Seller’s loan referenced in Section 1 above on the Closing Date, there . It shall be a condition to Buyer’s obligation to close this transaction that Seller shall have been delivered to the Purchaser, in form and substance satisfactory Buyer prior to the Purchaserclosing an estoppel certificate from all tenants of the Property occupying 5,000 or more s.f. of the Property certifying that such tenants’ leases is in full force and effect and there is no breach or default thereunder, and other information as Buyer shall reasonably require. Seller will use reasonable efforts to provide estoppel certificates from eighty percent (80%) of tenants of the Property occupying less then 5,000 s.f. and, if Seller is unable to provide such estoppel certificates, Seller will provide a copy landlord’s form of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on estoppel certificate for such tenants certifying that such tenants’ leases are in full force and effect and there is no breach or prior to default thereunder, and other information as Buyer shall reasonably require. At all times before the Closing Date, the Trust Assets Seller shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable cooperate with Buyer in connection with the issuance of the Certificates;
(l) on the Closing Dateobtaining governmental approvals, the Purchaser shall have received from CT Corporation System (i) a letterentitlements, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer consents, and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or permits in connection with Buyer's purchase and operation of the Basic DocumentsProperty, without cost or expense to Seller. This includes, without limitation, joining in proceedings for and/or the execution of petitions, applications, zone changes, easements, permits, approvals, conditional uses, licenses, dedications, and (ii) a copy other land use-related matters as reasonably approved by Seller and provided that the same are not effective unless the purchase and sale closes as contemplated herein, and further provided that the obtaining of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andsame shall not be a condition precedent to Buyer’s obligation to close.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Conditions to Purchase. The obligations of the Class A Note Purchaser will have no obligation to purchase the amended and pay for the Certificates being purchased by it restated Class A Notes hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, of the following conditionsunless:
(a) the representations and warranties each of the Trustee and the Settlors contained in the Basic Documents shall be true in full force and correct in effect and all material respects on consents, waivers and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements approvals necessary for the consummation of the transactions contemplated hereby and thereby by the Basic Documents shall have been executed obtained and delivered shall be in full force and effect;
(b) at the time of such issuance, all conditions to the issuance of the Class A Notes under the Indenture and under Section 2.1(b) of the Sale and Servicing Agreement shall have been satisfied and all conditions to the initial Class A Advance set forth under Section 6.02 hereof have been satisfied;
(c) the Class A Note Purchaser shall have received a duly executed, authorized and authenticated Class A Note registered as provided in Section 2.01 and stating that the principal amount thereof shall not exceed the Class A Maximum Invested Amount;
(d) the Issuer shall have paid all fees required to be paid by it on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Datedate hereof, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effectincluding all fees required under Section 3.01 hereof;
(e) the Certificates Class A Notes purchased by the Class A Note Purchaser hereunder shall have been executed, authenticated and delivered on or prior be entitled to the Closing Datebenefit of the security provided in the Indenture and shall constitute the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(f) no Material Adverse Change shall have occurred with respect to CPS or the Issuer since September 30, 2006;
(g) the Class A Note Purchaser shall have received:
(i) a duly executed and delivered original counterpart of each Basic Document (other than any Basic Document that contemplates delivery on a date that is after the Class B Closing Date), each such document being in full force and effect;
(ii) certified copies of charter documents and each amendment thereto, and resolutions of (A) the Board of Directors of each of the Issuer and the Servicer authorizing or ratifying the execution, delivery and performance, respectively, of all Basic Documents to which it is a party, (B) the issuance of Class A Notes contemplated hereunder and the issuance of the Class B Notes contemplated under the Class B Note Purchase Agreement and (C) the granting of the security interests contemplated under the Basic Documents, certified by the Secretary or an Assistant Secretary of each of the Issuer and the Servicer as of the Class A Closing Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary or an Assistant Secretary of the Issuer and the Servicer, as applicable, certifying the names and the signatures of its officer or officers authorized to sign all transaction documents to which it is a party;
(iv) a certificate of a senior officer of CPS to the effect that the representations and warranties of the Seller and the Servicer in this Agreement and the other Basic Documents to which it is a party are true and correct as of the date hereof, and that the Seller and the Servicer have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the date hereof;
(v) a certificate of a senior officer of the Issuer to the effect that the representations and warranties of the Issuer and the Purchaser in this Agreement and the other Basic Documents to which it is a party are true and correct as of the Class A Closing Date and that the Issuer and the Purchaser have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the date hereof;
(vi) legal opinions (including opinions relating to true sale, non-consolidation, UCC, enforceability and corporate matters, any of which may take the form of a "bring-down" opinion from the opinions issued on the Class A Closing Date, there shall have been delivered to the Purchaser, ) in form and substance satisfactory to the Class A Note Purchaser, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer and the Settlors;
(gvii) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance evidence satisfactory to the Class A Note Purchaser of completion of all necessary UCC filings and search reports;
(viii) payment of Class A Note Purchaser, a copy of a notarized power's reasonable out-of-attorney relating to the authority of each Settlorpocket fees and expenses in accordance with Section 3.01(c) hereof;
(hix) on copies of certificates (long form) or prior to other evidence from the Closing DateSecretary of State or other appropriate authority of the States of Delaware and California, evidencing the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each good standing of the Issuer and the Settlors as Servicer in the States of Delaware and California, in each case, dated no earlier than 15 days prior to the authority, incumbency and specimen signatures Class B Closing Date;
(x) copies (which may be delivered in electronic format) of the persons who have executed any commitment or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by agreement between the Issuer and the SettlorsServicer and any lender or other financial institution, and other than any such commitment or agreement (or portion thereof) which the Class A Note Purchaser specifically agrees are not required to be delivered hereunder; and
(xi) such other documents, opinions and certificates information as the Class A Note Purchaser or its counsel may reasonably require;request; and
(jh) there the Class A Note Purchaser shall have been delivered completed to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each its satisfaction its due diligence review of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) Servicer and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) respective management, controlling stockholders, systems, underwriting, servicing and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andcollection operations, static pool performance and its loan files.
Appears in 1 contract
Sources: Note Purchase Agreement (Consumer Portfolio Services Inc)
Conditions to Purchase. The obligations of the Purchaser shall not be obligated to purchase and pay for the Certificates being purchased by it any Receivable hereunder are, at its option, subject to the satisfaction, on or before the Closing Date, until each of the following conditionsconditions shall have been satisfied:
(a) the Purchaser shall have received a copy of the resolutions of the Board of Directors of the Seller approving this Agreement and the other documents to be delivered by it hereunder and the transactions contemplated hereby;
(b) the Purchaser shall have received a certificate of the Secretary or an Assistant Secretary of the Seller certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other documents to be delivered by it hereunder; (c) the Purchaser shall have received UCC-1 financing statements, executed by the Seller, naming the Seller as assignor of the Purchased Receivable and Related Assets and the Purchaser as the transferee and assignee thereof and such other similar instruments and documents as in the opinion of the Purchaser may be necessary or desirable under applicable law to perfect the Purchaser's interest in all the Purchased Receivables and Related Assets;
(d) the representations and warranties of the Trustee and the Settlors contained in the Basic Documents Section 4.01 hereof shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates no Termination Event shall have been executed, authenticated and delivered on or prior to the Closing Dateoccurred;
(f) on or prior to the Closing Date, there Purchaser shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, opinions received a favorable written opinion of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer Seller, as to the matters and to the Settlors;effect set forth in Sections 4.01(a), (b), (c), (d), (e) and (f) hereof, subject to such qualifications, exceptions and assumptions as are acceptable to the Purchaser; and
(g) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a lettersuch additional agreements, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer documents and the Settlors, respectively, service of process which instruments as it may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trusteerequest, in its capacity as Trusteesole discretion, and by from the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andSeller.
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Conditions to Purchase. The obligations following shall be conditions precedent to the purchase of the Purchaser to purchase and pay for Note on the Certificates being purchased by it hereunder are, at its option, subject to the satisfaction, on or before the Closing Initial Issue Date, of the following conditions:
(a) the representations The Notes shall have been duly authorized, executed, authenticated, delivered and warranties issued and, upon payment of the Trustee Purchase Price, shall be entitled to the benefits of the Indenture. This Agreement and each of the Settlors other Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and all conditions precedent contained in the Basic Transaction Documents shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;have been satisfied.
(b) on or prior to the Closing Date, there The Purchaser shall have been delivered to the Purchaser in form received a written legal opinion under United States and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the PurchaserNew York State law, in form and substance satisfactory to the Purchaser, opinions from each of counsel with respect to (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, covering corporate authorization, enforceability, non-contravention of material agreements, Lien perfection, non-contravention of law, no required approvals, no registration, Investment Company Act and such other matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇general counsel of the Obligors, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer covering absence of material litigation.
(c) The Purchaser and the Settlors;Indenture Trustee shall have each received signature and incumbency certificates executed by the authorized officers of each of the Guarantors and the Issuer, to enable each of them to enter into the Transaction Documents to which such entity is a party.
(gd) The Purchaser and the Indenture Trustee shall have received a closing certificate from each Obligor, including (i) the certificate of incorporation or articles of organization of such Obligor, as applicable, certified by the relevant authority of the jurisdiction of organization of such Obligor, (ii) certified bylaws or other operating agreement, as applicable, of such Obligor, (iii) a good standing certificate for such Obligor from its jurisdiction of organization and (iv) resolutions of the board of directors (or similar governing body) and where required its general meeting of shareholders (or similar body) authorizing and approving such Obligor’s execution, delivery and performance of the Transaction Documents to which it is a party and the transactions contemplated thereby.
(e) The costs and expenses incurred by the Purchaser and the Indenture Trustee on or prior to the Closing DateInitial Issue Date (and in the case of the Purchaser, there as described in the Fee Letter) shall have been delivered paid in full. Such costs and expenses shall be set forth on a “closing schedule of fees and expenses” approved by the Purchaser and the Issuer.
(f) All other amounts due and owing under the Fee Letter, including the Facility Fee described therein, shall have been paid to the Purchaser, .
(g) The representations and warranties of the Obligors set forth or referred to in form Section 3.1 hereof and substance satisfactory to in the Purchaser, a copy of a notarized power-of-attorney relating to other Transaction Documents shall be true and correct on the authority of each Settlor;Initial Issue Date.
(h) on No Default or prior to the Closing Date, the Trust Assets shall be free Event of Default has occurred and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;is continuing.
(i) on or prior to All corporate and other proceedings in connection with the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents transactions contemplated hereby and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the SettlorsTransaction Documents, and such other all documents, opinions and certificates as incident thereto shall be satisfactory in form and in substance to the Purchaser or its counsel may reasonably require;Purchaser.
(j) there All governmental and third party approvals necessary in connection with the continuing operations of the Group Companies and the transactions contemplated hereby shall have been delivered obtained and be in full force and effect.
(k) The Purchaser and the Indenture Trustee shall have received the results of a recent Lien search with respect to each Obligor, and such search shall reveal no Liens on any of the assets of the Obligors except for Permitted Liens, to the Purchaser a certificateextent such Permitted Liens may be present on such assets under the Indenture.
(l) The Indenture Trustee shall have received the certificates representing the Pledged Collateral as defined in and pledged pursuant to the Pledge Agreement and the Indenture, dated the Closing Date, signed together with an undated stock power for each such certificate executed in blank by a duly authorized officer of each of the Issuer and pledgor thereof. UCC financing statements contemplated by the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there Security Documents shall have been delivered recorded in the appropriate filing office.
(m) The Issuer shall have obtained, and provided to the Purchaser Purchaser, a copy of any notarized power-of-attorney of CUSIP number for the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;Notes.
(ln) on the Closing Date, the Purchaser The Issuer shall have received from CT Corporation System provided the Securities Intermediary with certified tax identification numbers by furnishing appropriate forms W-9 or W-8 and such other forms and documents that the Securities Intermediary may request.
(io) Unless a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections waiver shall have been obtained in accordance with Section 2.3, the first paragraph of section 2,554 Issuer’s acceptance of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections proceeds of the Federal Civil Code of Mexico (Código Civil Federal) and Note issued on the Civil Codes of Initial Issue Date shall be deemed its acknowledgement that the States of Mexico in favor conditions to closing set forth herein have been complied with or otherwise waived as of such agent for service of process are notarized; anddate.
Appears in 1 contract
Conditions to Purchase. The obligations of the Purchaser to purchase and pay for the Certificates being purchased by it hereunder are, at its option, subject following shall be conditions precedent to the satisfaction, on or before the Closing Date, of the following conditionsPurchase:
(a) the representations The Notes shall have been duly authorized, executed, authenticated, delivered and warranties issued and, upon payment of the Trustee Purchase Price, shall be entitled to the benefits of the Indenture. This Agreement and each of the Settlors other Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and all conditions precedent contained in the Basic Transaction Documents shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer and the Settlors to such effect;have been satisfied.
(b) on or prior to the Closing Date, there The Purchasers shall have been delivered to the Purchaser in form received a written legal opinion under United States and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;
(d) at the Closing Date, (i) there shall have been no material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed by a duly authorized officer thereof to such effect;
(e) the Certificates shall have been executed, authenticated and delivered on or prior to the Closing Date;
(f) on or prior to the Closing Date, there shall have been delivered to the PurchaserNew York State law, in form and substance satisfactory to the PurchaserPurchasers, opinions of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Procter LLP, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇covering corporate, S.C.enforceability, Mexican counsel to Lien perfection, non-contravention of law, no required approvals, no registration, non-contravention of material agreements, absence of material litigation, Investment Company Act and such other matters as the Issuer Purchasers may reasonably request.
(c) The Purchasers and the Settlors;Indenture Trustee shall have each received signature and incumbency certificates executed by the authorized officers of the Issuer, to enable it to enter into the Transaction Documents to which it is a party.
(gd) on or prior to The Purchasers and the Closing Date, there Indenture Trustee shall have been delivered to received a closing certificate from the PurchaserIssuer, in form and substance satisfactory to the Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on or prior to the Closing Date, the Trust Assets shall be free and clear of all liens, security interests, charges, encumbrances, defects and claims, except as expressly permitted by the Basic Documents;
including (i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer incorporation of each the Issuer, certified by the relevant authority of the jurisdiction of organization of the Issuer, (ii) certified bylaws of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by (iii) a good standing certificate for the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or from its counsel may reasonably require;jurisdiction of organization.
(je) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer The reasonable and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized powerdocumented out-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents pocket costs and expenses incurred by any other documents necessary or advisable Purchaser in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated Notes on or prior to the Closing Issue Date shall have been reimbursed to such Purchaser, or paid directly, by the Issuer; provided that such reimbursable expenses together with other reimbursable expenses in connection with the entering into and matters related to the effect that is accepts other Transaction Documents and the appointment to receive on behalf of Securities Purchase Agreement, dated June 28, 2013, by and among the Issuer and the Settlorspurchasers party thereto, respectivelythe Registration Rights Agreement, service dated as of process which may June 28, 2013, by and among the Issuer and the purchasers party thereto, the Purchase Agreement, dated as of June 28, 2013, by and between the Issuer and the purchasers party thereto, shall be served $150,000. Such costs and expenses shall be set forth on a “closing schedule of fees and expenses” approved by the Purchasers and the Issuer.
(f) The representations and warranties of the Issuer set forth or referred to in any legal action Section 3.1 hereof and in the other Transaction Documents shall be true and correct on the Issue Date.
(g) No Default or proceeding arising out Event of or Default has occurred and is continuing.
(h) All corporate and other proceedings in connection with the Basic Documentstransactions contemplated hereby and the other Transaction Documents and all documents, opinions and certificates incident thereto shall be reasonably satisfactory in form and in substance to the Purchasers.
(i) All governmental and third party approvals necessary in connection with the continuing operations of the Group Companies and the transactions contemplated hereby shall have been obtained and be in full force and effect.
(j) The Purchasers and the Indenture Trustee shall have received the results of a recent Lien search with respect to the Issuer, and (ii) a copy such search shall reveal no Liens on any of the public deed or public deeds granted by assets of the TrusteeIssuer except for Permitted Liens, in its capacity as Trustee, and by to the Settlors whereby extent such Permitted Liens may be present on such assets under the granting of general powers of attorney for lawsuits and collections Indenture.
(k) The Indenture Trustee shall have established the Collateral Account in accordance with and the first paragraph of section 2,554 amounts described in Section 2.14 of the Civil Code Indenture.
(l) The Issuer shall have obtained, and provided to the Purchasers, a CUSIP number for the Federal District of Mexico Notes.
(Código Civil para el Distrito Federalm) and its correlative sections Unless a waiver shall have been obtained in accordance with Section 2.2, the Issuer’s acceptance of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes proceeds of the States of Mexico in favor Note issued on the Issuance Date shall be deemed its acknowledgement that the conditions to closing set forth herein have been complied with or otherwise waived as of such agent for service of process are notarized; anddate.
Appears in 1 contract
Conditions to Purchase. The obligations of the Purchaser Noteholder's obligation to purchase and pay for the Certificates being purchased by it make Advances hereunder are, at its option, is subject to the satisfactionfulfilment, on or before to the Closing Datesatisfaction of the Noteholder, of each of the following conditions:
(a) Solely with respect to the initial Advance under the Note, the Noteholder shall have received certified or original copies of the following documents, all duly executed and delivered by the respective parties thereto and in full force and effect and otherwise in form and substance reasonably satisfactory to the Noteholder: (i) the certificate of formation and limited liability company agreement of the Issuer (including any amendments thereto), (ii) the resolutions of Goldman Sachs Hedge Fund Strategies LLC, a limited liability ▇▇▇▇▇▇y organized under the laws of Delaware (the "MANAGING MEMBER"), the managing member of the Issuer, authorizing and approving the issuance by the Issuer of the Note and the borrowing of Advances up to the Commitment, (iii) a certificate issued by the Secretary of State of Delaware as to the good standing of the Issuer, (iv) the Issuer's Private Placement Memorandum dated as of June 2003, and all amendments, supplements and modifications thereto (as so amended, supplemented and otherwise modified as of the date hereof, the "PPM") and all forms of subscription agreements, in each case, as in effect as of such date, (v) the Investment Management Agreement dated as of August 1, 2003 between the Managing Member and Issuer, (vi) the Amended and Restated Services Agreement dated as of May 4, 2004 among the Issuer, the Managing Member and SEI Global Investors, Inc. (the "FUND ADMINISTRATOR"); (vii) a certificate of the secretary of the Managing Member attesting as to incumbency of all officers signing this Agreement and the Note and addressing such other matters as the Noteholder may reasonably request, (viii) the legal opinion of internal staff counsel of the Issuer with respect to such matters as the Noteholder may reasonably request, (ix) evidence reasonably satisfactory to the Noteholder that the NAV of the Issuer as of the date of the initial Advance is not less than $450,000,000, and (x) such other approvals, opinions and documents relating to this Agreement and the transactions contemplated hereby as the Noteholder shall have reasonably requested (the documents and agreements referred to in clauses (i)-(vi) of this Section 4(a), collectively, the "SPECIFIED AGREEMENTS").
(b) The Noteholder shall have received a duly executed Notice of Advance with respect to each such Advance.
(c) The representations and warranties of the Trustee and the Settlors contained in the Basic Documents Issuer herein shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to a particular date, in which case such representations and warranties shall be true and correct on and as of such date, and the Purchaser shall received a certificate dated the closing date from an officer of each of the Issuer Advance, before and the Settlors after giving effect to each such effect;
(b) on or prior to the Closing Date, there shall have been delivered to the Purchaser in form and substance satisfactory to the Purchaser copies of (i) the approval given by Banco de México to the Trustee for the creation of the Trust and the issuance of the Certificates thereby and (ii) the approval given by the CNBV for the registration of the Securities with the Special Section of the National Registry of Securities and Intermediaries maintained by the CNBV;
(c) each Basic Document and any other agreements necessary for the consummation of the transactions contemplated hereby and thereby shall have been executed and delivered on or prior to the Closing Date in a form satisfactory to the Purchaser;Advance.
(d) at the Closing Date, (i) there The Issuer shall have been no performed and complied in all material adverse change, or any development involving a prospective material adverse change, respects with all obligations and agreements required herein and in the condition (financial Note to be performed or otherwise), business prospects, results of operations or business affairs of the Settlors taken as a whole since December 31, 2004, and (ii) there shall have been delivered to the Purchaser a certificate of each of the Settlors, dated the closing Date, signed complied with by a duly authorized officer thereof to such effect;it.
(e) No Event of Default or event that with the Certificates lapse of time or the giving of notice or both would constitute an Event of Default shall have been executedoccurred and be continuing hereunder or under the Note, authenticated and delivered on or prior to would result from the Closing Date;making of such Advance or from the application of the proceeds therefrom.
(f) on The Issuer shall have complied with, or prior caused the compliance of, to the Closing Date, there shall have been delivered to reasonable satisfaction of the Purchaser, Noteholder the reporting requirements set forth in form and substance satisfactory to SCHEDULE I hereto as of the Purchaser, opinions date of counsel with respect to such matters as the Purchaser may reasonably request from: (i) Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., Mexican counsel to the Issuer and the Settlors;Advance.
(g) on or prior After giving effect to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a copy of a notarized power-of-attorney relating to the authority of each Settlor;
(h) on or prior to the Closing Datesuch Advance, the Trust Assets shall be free and clear sum of the principal amount of all liensAdvances outstanding shall not exceed Commitment, security interests, charges, encumbrances, defects and claims, except as expressly permitted determined by the Basic Documents;
(i) on or prior to the Closing Date, there shall have been delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate of a duly authorized officer of each of the Issuer and the Settlors as to the authority, incumbency and specimen signatures of the persons who have executed or will execute each of the Basic Documents and the other instruments and documents to be executed and delivered hereunder and thereunder by the Issuer and the Settlors, and such other documents, opinions and certificates as the Purchaser or its counsel may reasonably require;
(j) there shall have been delivered to the Purchaser a certificate, dated the Closing Date, signed by a duly authorized officer of each of the Issuer and the Settlors to the effect that (x) the representations and warranties of such party herein are true, accurate and correct in all material respects at, and as if made on, the Closing date and (y) such party has performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(k) there shall have been delivered to the Purchaser a copy of any notarized power-of-attorney of the Trustee whereby officers of the Trustee are appointed attorneys-in-fact of the Trustee will power to execute the Certificates, the Basic Documents and any other documents necessary or advisable in connection with the issuance of the Certificates;
(l) on the Closing Date, the Purchaser shall have received from CT Corporation System (i) a letter, dated on or prior to the Closing Date to the effect that is accepts the appointment to receive on behalf of the Issuer and the Settlors, respectively, service of process which may be served in any legal action or proceeding arising out of or in connection with the Basic Documents, and (ii) a copy of the public deed or public deeds granted by the Trustee, in its capacity as Trustee, and by the Settlors whereby the granting of general powers of attorney for lawsuits and collections in accordance with the first paragraph of section 2,554 of the Civil Code for the Federal District of Mexico (Código Civil para el Distrito Federal) and its correlative sections of the Federal Civil Code of Mexico (Código Civil Federal) and the Civil Codes of the States of Mexico in favor of such agent for service of process are notarized; andNoteholder.
Appears in 1 contract
Sources: Note Purchase Agreement (Goldman Sachs Hedge Fund Partners Ii LLC)