Financing Contracts. (a) Except as set forth in Section 3.21(a) of the Disclosure Schedule, to Seller's Knowledge, each Financing Contract, Credit Enhancement and, with respect to any Mortgage Loan set forth on the Mortgage Loan Schedule, each Loan Document (i) is valid, binding and enforceable by a Purchased Entity or an Asset Seller (and, after giving effect to the Acquisition, the Purchaser or the applicable Acquiring Subsidiaries) against the Obligor thereunder, in the case of a Financing Contract or, in the case of a Credit Enhancement or Loan Document, the obligor thereunder, in each case, in accordance with its written terms (except as may be limited by the Bankruptcy Exception), and (ii) constitutes and arose out of a bona fide business transaction entered into in the ordinary and usual course of business of such Asset Seller or Purchased Entity (as applicable), consistent with its past practices. All amendments, modifications, waivers, extensions, cancellations and releases in respect of any Financing Contract are in writing and, except for any such documents entered into in connection with a Syndicated Facility (and only to the extent copies of which documents have not been received by a Purchased Entity or an Asset Seller), are maintained in hard copy or are stored electronically in the Legal/Credit Files for such Financing Contract. 66 (b) Except as set forth in Section 3.21(b) of the Disclosure Schedule, (i)(A) each Financing Contract, Credit Enhancement (other than Portfolio Property) and with respect to any Financing Contract that is a Mortgage Loan, Loan Document is, or as of the Closing Date will be, in full force and effect, free and clear of all Encumbrances other than Permitted Encumbrances, and (B) to Seller's Knowledge, no Financing Contract, Credit Enhancement (other than Portfolio Property) or, with respect to any Financing Contract that is a Mortgage Loan, Loan Document is subject to any valid defense, offset, claim, right of rescission or counterclaim (other than non-appropriation with respect to Financing Contracts with Governmental Authorities containing non-appropriation clauses) by the Obligor under such Financing Contract or Loan Document, in the case of a Financing Contract or Loan Document, or by the obligor thereunder, in the case of a Credit Enhancement, or any Person claiming under any such right; (ii) as of July 31, 2003 and as of the Cut-Off Date (A) to Seller's Knowledge, no Asset Seller and no Purchased Entity (to the extent that it is a party thereto) is in breach of or default under any Financing Contract, Credit Enhancement or, with respect to any Financing Contract that is a Mortgage Loan, Loan Document, (B) to Seller's Knowledge, (1) with respect to any Financing Contract originated or held by a Purchased Entity part of the distribution Finance Business Line no scheduled payment due thereunder is more than 60 days past due and (2) with respect to any Financing Contract originated or held by a Purchased Entity part of any Business Line other than the distribution finance Business Line, no scheduled payment due thereunder is more than thirty (30) days past due, and (C) no Selling Entity, no Purchased Entity and none of their respective Affiliates has received notice that an Obligor under a Financing Contract originated or held by a Purchased Entity (other than a Purchased Entity part of the distribution finance Business Line) has breached any of its obligations in respect of any negative covenants or financial covenants (or other similar agreements or undertakings) contained in such Financing Contract or in any related agreement; (iii) other than as reflected in the applicable Legal/Credit Files with respect to interests in Syndicated Facilities, an Asset Seller or Purchased Entity is (and, after giving effect to the transactions contemplated by Section 2.01, a Purchased Entity, the Purchaser or an Acquiring Subsidiary will be) the sole owner and holder of all right, title and interest in each Financing Contract and each Credit Enhancement other than the rights of the Obligor therein, or rights created by the Financing Contract in favor of third parties; (iv) [intentionally omitted]; (v) an Asset Seller or Purchased Entity (or, to the Seller's Knowledge, in connection with any Syndicated Facility, the administrative, collateral agent, trustee or the Depository Trust Company) has (and, after giving effect to the transactions contemplated by Section 2.01, a Purchased Entity, the Purchaser or an Acquired Subsidiary will have) in its possession an executed original of any wholesale financing agreement, note, if any, or lease (and an executed original or a true and correct copy of all other Documents), in each case, duly executed by each party thereto comprising each Financing Contract and Credit Enhancement and all other Documents required by the applicable Selling Entity's or Purchased Entity's credit or investment approval with respect to such Financing Contract (including, with respect to any Financing Contract which is a lease, documentation which accurately evidences the original equipment cost with respect to any Portfolio Property that is subject thereto for purposes of determining personal property Tax liability); (vi) (A) except for Financing Contracts with Governmental Authorities containing non-appropriation clauses, no Financing Contract that is in the form of a lease is terminable at the option of the Obligor thereunder except to the extent that such Obligor is required to pay the applicable Purchased Entity or Asset Seller (with respect to any Acquired ISF Asset) a termination payment in an amount not less than the present value of all remaining scheduled payments, computed using a discount rate equal to the contract rate, if provided for, or otherwise the implicit rate for such Financing Contract and (B) no Financing Contract that is in the form of a loan, is terminable at the option of the Obligor thereunder except to the extent that the Obligor is required to pay the applicable Purchased Entity or Asset Seller not less than the sum of the outstanding principal balance plus accrued and unpaid interest thereunder at the time of termination, (vii) all payments pursuant to each Financing Contract are made directly to the applicable Asset Seller or Purchased Entity, or to lockboxes with respect to which an Asset Seller (with respect to any Acquired ISF Assets) or a Purchased Entity is the account holder, or to blocked accounts with respect to which such Asset Seller or Purchased Entity (as applicable) is the account holder or beneficiary, or to accounts maintained by an administrative agent, collateral agent, trustee or the Depository Trust Company in connection with any Syndicated Facilities, or to servicers of Financing Contracts (to the extent such servicing arrangements are entered into by a Purchased Entity or Asset Seller in the ordinary course of its business), or pursuant to other similar arrangements; (viii) an Asset Seller or Purchased Entity has approved credit applications and otherwise entered into commitments with respect to each Financing Contract in a manner consistent with such Person's credit policies, collateral eligibility standards and credit quality classifications in effect at the time (other than ordinary course deviations therefrom, consistent with such Person's past practices) and otherwise complied with standards of evaluating, originating, underwriting and funding new businesses which are in all respects consistent with its past practices; and (ix) no Asset Seller and no Purchased Entity has been, or is committed to become, a party to any agreement, contract or commitment with respect to the residual interest in any Portfolio Property (other than (A) with respect to any Portfolio Property subject to a Financing Contract that is a finance lease and (B) residual sharing agreements that do not impair the value of the Residual and which are both (1) entered into in the ordinary course of business, consistent with past practices, and (2) reflected in the credit approval documentation with respect to the related Financing Contract). (c) Except as set forth in Section 3.21(c) of the Disclosure Schedule, (i) (A) except as permitted by the applicable credit approval documentation contained in the Legal/Credit Files for such Financing Contract, (B) except as otherwise reflected in the Legal/Credit Files for such Financing Contract, or (C) except in connection with a Syndicated Facility (and then only to the extent not materially and adversely different than the information contained in the Legal/Credit Files) no Financing Contract (and, with respect to any Financing Contract which is a Mortgage Loan, no Loan Document) is subject to any debt subordination agreement, participation agreement, intercreditor agreement, owner trust agreement, purchase agreement, collateral sharing agreement, residual sharing agreement, remarketing agreement or vendor recourse agreement and (ii) no Financing Contract (and, with respect to any Financing Contract which is a Mortgage Loan, no Loan Document) is subject to any agreement, contract or other arrangement (other than this Agreement or any Vendor Program Agreement) pursuant to which any interest in any Financing Contract or Loan Document (as applicable) or any payment due under any Financing Contract, Loan Document, Credit Enhancement or with respect to any Portfolio Property has been sold, used as collateral, transferred or participated to or otherwise disposed of to any Person or Persons by the applicable Purchased Entity or Asset Seller except in connection with Ordinary Course Asset Transactions, and then only to the extent such transaction is accurately reflected in the Legal/Credit Files for such Financing Contract and in such Asset Seller's or Purchased Entities financial reporting records. (d) Section 3.21(d) of the Disclosure Schedule sets forth a list of each Credit Enhancement that is a letter of credit or a certificate of deposit that has a maximum face amount in excess of $250,000 and the expiration or maturity date thereof, if applicable. The Legal/Credit File for each Financing Contract contains originals of each Credit Enhancement in the form of a letter of credit, certificate of deposit, stock certificate or other instrument that is required by the credit approval for the related Financing Contract (other than any Credit Enhancements of the type described above which are provided by Obligors in connection which Syndicated Facilities and are held by the related collateral or administrative agent for the ratable benefit of a Purchased Entity or an Asset Seller (as applicable)). (e) As of the Closing, no Obligor under any Financing Contract has acquired any Portfolio Property, any interest in any Portfolio Property or the use of any Portfolio Property pursuant to such Financing Contract, in any case, for personal, family or household use. (i) With respect to each Financing Contract directly originated by a Purchased Entity or an Asset Seller (with respect to the Acquired International Structured Finance Business) for which the Obligor thereunder is a Governmental Authority, (i) the applicable Asset Seller or Purchased Entity has complied with all bidding requirements applicable to such transaction and with all requirements of any applicable request for proposal, including those applicable to the Portfolio Property and all Laws governing equal employment opportunity, affirmative action and environmental protection; (ii) an Asset Seller or Purchased Entity is the Person, or assignee of the Person, named in and subject to the request for proposal and (iii) the applicable Asset Seller or Purchased Entity has obtained the consent of such Governmental Authority if required by the terms of the Financing Contract, for the consummation of the Acquisition. (ii) Except as set forth in Section 3.21(f)(ii) of the Disclosure Schedule, the United States Government is not an Obligor under any Financing Contract. (i) Neither the billing and collection nor the enforcement of any Financing Contract or Credit Enhancement (other than any Financing Contract part of, or Credit Enhancement granted or delivered in connection with, any Syndicated Facility) in accordance with the written terms thereof has resulted, or will result in, a violation of any (ii) To Seller's Knowledge, neither the billing and collection nor the enforcement of any Financing Contract part of, or Credit Enhancement granted or delivered in connection with, any Syndicated Facility in accordance with the written terms thereof has resulted, or will result in, a violation of any current applicable Law.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Transamerica Finance Corp)
Financing Contracts. (a) Except as set forth in Section 3.21(a6.9(a) of the Disclosure ScheduleSchedule sets forth for each Financing Contract entered into by Seller on or before the date of this Agreement the following information as of the date of this Agreement: (i) the name and address of the Obligor; (ii) the principal amount of the loan, the remaining term of the Financing Contract and all amounts outstanding thereunder; (iii) the amortization schedule in respect of each amount outstanding under the Financing Contracts, (iv) whether the debt under the Financing Contract is subordinate; (v) the number of shares or other units for which Securities have been issued to Seller in connection with the Financing Contract and the unadjusted exercise or conversion price thereunder; (vi) the material terms and amounts of any additional equity interest held by Seller in the Obligor (if any), and (vii) the value reflected on Seller's Knowledge, each books of any debt or equity interest in the Obligor.
(b) Each Financing Contract, Contract and Credit Enhancement and, with respect to any Mortgage Loan set forth on the Mortgage Loan Schedule, each Loan Document (i) is legal, valid, binding and enforceable by a Purchased Entity or an Asset Seller (and, after giving effect to the Acquisition, the Purchaser or the applicable Acquiring Subsidiaries) against the Obligor thereunderlessee, in the case of a Financing Contract or, in the case of a Credit Enhancement obligor or Loan Document, the obligor thereunder, in each case, borrower thereunder in accordance with its written terms (terms, except as may be limited by the Bankruptcy and Equity Exception), and (ii) constitutes and arose out of a bona fide business transaction entered into in the ordinary and usual course of business of such Asset Seller or Purchased Entity Seller.
(as applicable), consistent with its past practices. All amendments, modifications, waivers, extensions, cancellations and releases in respect of any i) Each Financing Contract are in writing and, except for any such documents entered into in connection with a Syndicated Facility (and only to the extent copies of which documents have not been received by a Purchased Entity or an Asset Seller), are maintained in hard copy or are stored electronically in the Legal/Credit Files for such Financing Contract. 66
(b) Except as set forth in Section 3.21(b) of the Disclosure Schedule, (i)(A) each Financing Contract, Credit Enhancement (other than Portfolio Property) and with respect to any Financing Contract that is a Mortgage Loan, Loan Document is, or as of the Closing Date will be, in full force and effect, free and clear of all Encumbrances other than Liens (whether or not perfected), except for Permitted EncumbrancesLiens, and (B) to Seller's Knowledge, no Financing Contract, Credit Enhancement (other than Portfolio Property) or, with respect to any Financing Contract that is a Mortgage Loan, Loan Document is Knowledge not subject to any valid defense, offset, claim, right of rescission or counterclaim (other than non-appropriation with respect to Financing Contracts with Governmental Authorities containing non-appropriation clauses) by the Obligor under such Financing Contract or Loan Document, in the case of a Financing Contract or Loan Document, or by the obligor thereunder, Obligor thereunder in the case of a Credit Enhancement, or any Person claiming under any such right; , (ii) as of July 31, 2003 each Financing Contract and as of the Cut-Off Date Credit Enhancement is without (A) to any default thereunder by Seller's Knowledge, no Asset Seller and no Purchased Entity (to the extent that it is a party thereto) is in breach of or default under any Financing Contract, Credit Enhancement or, with respect to any Financing Contract that is a Mortgage Loan, Loan Document, (B) to Seller's Knowledge, (1) with respect to any Financing Contract originated monetary default by the Obligor thereunder or held by a Purchased Entity part of the distribution Finance Business Line no scheduled payment due thereunder is more than 60 days past due and (2) with respect to any Financing Contract originated or held by a Purchased Entity part of any Business Line other than the distribution finance Business Line, no scheduled payment due thereunder is more than thirty (30) days past due, and (C) no Selling Entityto Seller's Knowledge, no Purchased Entity and none of their respective Affiliates has received notice that an any material non-monetary default by any Obligor under a Financing Contract originated or held by a Purchased Entity (other than a Purchased Entity part of the distribution finance Business Line) has breached any of its obligations in respect of any negative covenants or financial covenants (or other similar agreements or undertakings) contained in such Financing Contract or in any related agreement; party thereto, (iii) other than as reflected in Seller is the applicable Legal/Credit Files with respect to interests in Syndicated Facilities, an Asset Seller or Purchased Entity is (and, after giving effect to the transactions contemplated by Section 2.01, a Purchased Entity, the Purchaser or an Acquiring Subsidiary will be) the sole owner and holder of all right, title and interest in each Financing Contract and each Credit Enhancement other than the rights of the Obligor thereinEnhancement, or rights created by the Financing Contract in favor of third parties; (iv) [intentionally omitted]; (v) an Asset Seller or Purchased Entity (or, to the Seller's Knowledge, in connection with any Syndicated Facility, the administrative, collateral agent, trustee or the Depository Trust Company) has (and, after giving effect to the transactions contemplated by Section 2.01, a Purchased Entity, the Purchaser or an Acquired Subsidiary will have) in its possession an executed original of any wholesale financing agreement, note, if any, or lease (and an executed original or a true and correct copy of all other Documents), in each case, duly executed by each party thereto comprising each Financing Contract and Credit Enhancement and all other Documents required by the applicable Selling Entity's or Purchased Entity's credit or investment approval with respect to such Financing Contract (including, with respect to any Financing Contract which is a lease, documentation which accurately evidences the original equipment cost with respect to any Portfolio Property that is subject thereto for purposes of determining personal property Tax liability); (vi)
(A) except for Financing Contracts with Governmental Authorities containing non-appropriation clauses, no Financing Contract that is in the form of a lease is terminable at the option of the Obligor thereunder except to the extent that such Obligor is required to pay the applicable Purchased Entity or Asset Seller (with respect to any Acquired ISF Asset) a termination payment in an amount not less than the present value of all remaining scheduled payments, computed using a discount rate equal to the contract rate, if provided for, or otherwise the implicit rate for such Financing Contract and (B) no Financing Contract that is in the form of a loan, is terminable at the option of the Obligor thereunder except to the extent that the Obligor is required to pay the applicable Purchased Entity or Asset Seller not less than the sum of the outstanding principal balance plus accrued and unpaid interest thereunder at the time of termination, (vii) all payments pursuant to each Financing Contract are made directly to the applicable Asset Seller or Purchased Entity, or to lockboxes with respect to which an Asset Seller (with respect to any Acquired ISF Assets) or a Purchased Entity is the account holder, or to blocked accounts with respect to which such Asset Seller or Purchased Entity (as applicable) is the account holder or beneficiary, or to accounts maintained by an administrative agent, collateral agent, trustee or the Depository Trust Company in connection with any Syndicated Facilities, or to servicers of Financing Contracts (to the extent such servicing arrangements are entered into by a Purchased Entity or Asset Seller in the ordinary course of its business), or pursuant to other similar arrangements; (viii) an Asset Seller or Purchased Entity has approved credit applications and otherwise entered into commitments with respect to each Financing Contract in a manner consistent with such Person's credit policies, collateral eligibility standards and credit quality classifications in effect at the time (other than ordinary course deviations therefrom, consistent with such Person's past practices) and otherwise complied with standards of evaluating, originating, underwriting and funding new businesses which are in all respects consistent with its past practices; and (ix) no Asset Seller and no Purchased Entity has been, or is committed to become, a party to any agreement, contract or commitment with respect to the residual interest in any Portfolio Property (other than (A) with respect to any Portfolio Property subject to a Financing Contract that is a finance lease and (B) residual sharing agreements that do not impair the value of the Residual and which are both (1) entered into in the ordinary course of business, consistent with past practices, and (2) reflected in the credit approval documentation with respect to the related Financing Contract).
(c) Except as set forth in Section 3.21(c) of the Disclosure Schedule, (i) (A) except as permitted by the applicable credit approval documentation contained in the Legal/Credit Files for such Financing Contract, (B) except as otherwise reflected in the Legal/Credit Files for such Financing Contract, or (C) except in connection with a Syndicated Facility (and then only to the extent not materially and adversely different than the information contained in the Legal/Credit Files) no Financing Contract (and, with respect to any Financing Contract which is a Mortgage Loan, no Loan Document) is subject to any debt subordination agreement, participation agreement, intercreditor agreement, owner trust agreement, purchase agreement, collateral sharing agreement, residual sharing agreement, remarketing agreement or vendor recourse agreement and (ii) no Financing Contract (and, with respect to any Financing Contract which is a Mortgage Loan, no Loan Document) is subject to any agreement, contract or other arrangement (other than this Agreement or any Vendor Program Agreement) pursuant to which any interest in any Financing Contract or Loan Document (as applicable) or any payment due under any Financing Contract, Loan Document, Credit Enhancement or with respect to any Portfolio Property has been sold, used as collateral, transferred or participated to or otherwise disposed of to any Person or Persons by the applicable Purchased Entity or Asset Seller except in connection with Ordinary Course Asset Transactions, and then only to the extent such transaction is accurately reflected in the Legal/Credit Files for such Financing Contract and in such Asset Seller's or Purchased Entities financial reporting records.
(d) Section 3.21(d) of the Disclosure Schedule sets forth a list of each Credit Enhancement that is a letter of credit or a certificate of deposit that has a maximum face amount in excess of $250,000 and the expiration or maturity date thereof, if applicable. The Legal/Credit File for each Financing Contract contains originals of each Credit Enhancement in the form of a letter of credit, certificate of deposit, stock certificate or other instrument that is required by the credit approval for the related Financing Contract (other than any Credit Enhancements of the type described above which are provided by Obligors in connection which Syndicated Facilities and are held by the related collateral or administrative agent for the ratable benefit of a Purchased Entity or an Asset Seller (as applicable)).
(e) As of the Closing, no Obligor under any Financing Contract (A) has acquired any Portfolio Property, any interest in any Portfolio Property or the use of any Portfolio Property pursuant to such Financing Contract, in any case, Contract for personal, family or household useuse or for agricultural purposes or (B) is required under any applicable Law to withhold any Taxes from payments on any such Financing Contracts, (v) Seller has in its possession a fully executed original, or valid, binding and enforceable copy, of any lease or note (and an executed original or true and correct copy of all other documents) comprising such Financing Contract and each such Credit Enhancement and all other documents required by the credit or investment approval of each Financing Contract, (vi) Seller has in its possession documentation sufficient to establish the original cost or value (as used by Seller) of all Portfolio Property for purposes of determining personal property tax liability, (vii) all payments pursuant to each Financing Contract are made directly to Seller and (viii) Seller neither is or has been, nor is committed to become, a party to any agreement, contract or commitment with respect to the Residual as to any Portfolio Property.
(d) Except as set forth in Section 6.9(d) of the Disclosure Schedule, no Financing Contract is subject to any subordination agreement or Disposition Agreement.
(e) Section 6.9(e) of the Disclosure Schedule sets forth (i) a list of each Credit Enhancement as of the date of this Agreement, (ii) with respect to each such Credit Enhancement which is a security deposit, the amount thereof and the depositor and (iii) with respect to each such Credit Enhancement which is a letter of credit, the issuer thereof, the maximum amount drawable thereunder, the expiration date thereof and the physical location thereof. Seller neither has accepted, nor possesses or is required, pursuant to the terms of any investment or credit approval, to have obtained any Credit Enhancement that is a certificate of deposit or stock certificate.
(f) To Seller's Knowledge, each Obligor under a Financing Contract is solvent and has the ability to pay its debts and obligations under such Financing Contract.
(g) With respect to each Financing Contract directly originated by a Purchased Entity or an Asset in which Seller (with respect has been issued Securities, to the Acquired International Structured Finance Business) for actual knowledge of Seller each such Security was issued in compliance with the requirements of the Securities Act and Seller has not taken any actions which would violate the Obligor thereunder is a Governmental Authority, (i) restrictions imposed upon Seller in connection with such Securities under the applicable Asset Seller securities laws, pursuant to contract or Purchased Entity has complied with all bidding requirements applicable to such transaction and with all requirements of any applicable request for proposal, including those applicable to the Portfolio Property and all Laws governing equal employment opportunity, affirmative action and environmental protection; (ii) an Asset Seller or Purchased Entity is the Person, or assignee of the Person, named in and subject to the request for proposal and (iii) the applicable Asset Seller or Purchased Entity has obtained the consent of such Governmental Authority if required by the terms of the Financing Contract, for the consummation of the Acquisitionotherwise.
(iih) Except as set forth in Section 3.21(f)(ii6.9(a) of the Disclosure ScheduleSchedule sets forth each of the Securities issued by Obligors under Financing Contracts which are held by Seller as of the date of this Agreement. To the actual knowledge of Seller, each such security or warrant has been duly authorized and validly issued and are fully paid and nonassessable and free of preemptive and similar rights. To the actual knowledge of Seller, the United States Government is not an Obligor under any Financing Contract.
(i) Neither securities to be issued upon exercise of the billing and collection nor warrants have been reserved for issuance to Seller by the enforcement Obligors. To the actual knowledge of Seller, upon exercise of any Financing Contract or Credit Enhancement (other than any Financing Contract part ofsuch warrant and payment of the exercise price, or Credit Enhancement granted or delivered in connection withthe shares of the Obligor's capital stock issuable upon such exercise shall be duly authorized, any Syndicated Facility) in accordance with the written terms thereof has resulted, or will result in, a violation validly issued and fully paid and nonassessable and free of any
(ii) To Seller's Knowledge, neither the billing preemptive and collection nor the enforcement of any Financing Contract part of, or Credit Enhancement granted or delivered in connection with, any Syndicated Facility in accordance with the written terms thereof has resulted, or will result in, a violation of any current applicable Lawsimilar rights.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sumitomo Corporation of America)