Funding Date Each Lender’s obligations to make any Loan hereunder shall become effective upon the satisfaction or waiver (in accordance with Section 8.02) of the following conditions on or after the Effective Date:
(a) The Effective Date shall have occurred;
(b) The Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Loans, shall be) consummated in each case in all material respects in accordance with the terms set forth in the Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders (it being understood that any modification, amendment, supplement, consent, waiver or request by the Borrower to the definition of Material Adverse Effect (as defined in the Acquisition Agreement) shall be deemed to be materially adverse to the interests of the Lenders and any consent or request made by the Borrower pursuant to Section 6.15 of the Acquisition Agreement and the Acquired Company’s compliance therewith shall not be deemed to be materially adverse to the interests of the Lenders), unless consented to in writing by the Arrangers (such consent not to be unreasonably withheld, conditioned or delayed);
(c) The Administrative Agent shall have received (i) audited consolidated balance sheets and related audited statements of operations, stockholders’ equity and cash flows of the Borrower and the Acquired Company for each of the three fiscal years most recently ended at least 90 days prior to the Funding Date and (b) unaudited consolidated balance sheets and related unaudited statements of operations, stockholders’ equity and cash flows of the Borrower and the Acquired Company for each subsequent fiscal quarter ended at least 45 days prior to the Funding Date; provided that the filing of financial statements complying with the foregoing requirements on Form 10-K or Form 10-Q, as the case may be, by the Borrower or the Acquired Company will satisfy the applicable conditions set forth in this clause (c) of Section 4.
The First Closing Date Delivery of certificates for the Firm Shares to be purchased by the Underwriters and payment therefor shall be made at the offices of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m. New York City time, on [•], or such other time and date not later than 1:30 p.m. New York City time, on [•] as the Representatives shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representatives may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representatives to recirculate to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 11.
Initial Closing Date 3.1 A meeting shall take place on the Initial Closing Date at the offices of ▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such offices as the parties may agree at which the Seller shall deliver to the Security Trustee or its representative the following documents:
(a) two originals of the power of attorney substantially in the form set out in Schedule 5, duly executed by the Seller;
(b) a certified copy of each of the Insurance Acknowledgements (as defined in the Mortgage Sale Agreement dated 26 July 2000);
(c) a duly executed assignment of the MIG Policies (as defined in the Mortgage Sale Agreement dated 26 July 2000) from the Seller and a certified copy of a notice (the original of which shall be served by courier or by special delivery) of such assignment from the Seller to Carfax or such other insurer under the MIG Policies in the form (mutatis mutandis) set out in Schedules 8 and 9 respectively of the Mortgage Sale Agreement dated 26 July 2000 and a certified copy of consent to assignment of the MIG Policies (or acknowledgement that the Mortgages Trustee will be an insured under the MIG Policies following the assignment) from Carfax or such other insurers in such form as the Mortgages Trustee reasonably requires;
(d) a certified copy of the board minutes of the Seller authorising its duly appointed representatives to agree the sale of the Portfolio and authorising execution and performance of this Agreement, the Servicing Agreement, the other Transaction Documents and all of the documentation to be entered into pursuant to this Agreement;
(e) a duly executed assignment of rights against third parties in the form of the Assignment of Third Party Rights;
(f) a certified copy of the notice from the Seller to Carfax as to the proposed assignment of the MIG Policies; and
(g) a solvency certificate from an authorised signatory of the Seller dated as at the Initial Closing Date.
3.2 The Seller undertakes that, from the Initial Closing Date until the completion of the assignment in accordance with Clause 6.1, the Seller shall hold the Title Deeds and Customer Files relating to the Portfolio that are in its possession or under its control or held to its order to the order of the Mortgages Trustee or as the Mortgages Trustee shall direct.
3.3 Subject to fulfilment of the conditions referred to in Clauses 2.2 and 3.1, the Seller shall be paid the Purchase Price by telegraphic transfer as follows:
(a) the Initial Consideration shall be paid by Funding for and on behalf of the Mortgages Trustee on the Initial Closing Date; and
(b) the Deferred Consideration (including any Postponed Deferred Consideration) shall be paid by Funding for and on behalf of the Mortgages Trustee quarterly on the Interest Payment Dates (provided there are available funds and after the making of any provisions in accordance with normal accounting practice) in accordance with the Funding Pre- Enforcement Revenue Priority of Payments or, as the case may be, the Funding Post- Enforcement Priority of Payments.
3.4 The Seller shall provide all reasonable co-operation to the Mortgages Trustee, Funding and the Security Trustee to enable them to carry out their respective duties and enforce their rights under the Transaction Documents. Without prejudice to the generality of the foregoing, the Seller shall:
(a) upon reasonable prior notice and during normal office hours, permit the Mortgages Trustee, Funding, the Security Trustee and their authorised employees and agents and other persons nominated by the Security Trustee and approved by the Seller (such approval not to be unreasonably withheld or delayed) to review the Customer Files and the Title Deeds in relation to the Portfolio (subject to such person(s) agreeing to keep the same confidential but provided that disclosure shall be permitted to the professional advisors and auditors of the party making the disclosure and/or to the extent that such disclosure is required by law or for the purpose of any judicial or other proceedings); and/or
(b) give promptly all such information and explanations relating to the Loans and their Related Security as the Mortgages Trustee, Funding or the Security Trustee may reasonably request (including a list of the Loans and their Related Security in the Portfolio along with details of the location of the Title Deeds relating thereto), provided that, prior to completion in accordance with Clause 6, the Seller shall be under no obligation to provide any information or documentation to any person other than the Mortgages Trustee and/or the Security Trustee or their respective employees or allow such person access to the Customer Files or Title Deeds if to do so would result in a breach of the applicable Mortgage Terms or the Data Protection ▇▇▇ ▇▇▇▇.
Delayed Draw Term Loans (a) During the Delayed Draw Term Loan Availability Period, the Borrower may request, in accordance with this Section 2.5(a), up to four (4) draws of delayed draw term loans (the “Delayed Draw Term Loans”) in an aggregate principal amount not to exceed the Delayed Draw Term Loan Amount. Each such draw of Delayed Draw Term Loans shall be in a minimum amount of $25,000,000, or an amount equal to the remaining Delayed Draw Term Loan Commitments. Each Borrowing of the Delayed Draw Term Loans shall be made on the date stated in the Borrower’s Notice of Borrowing delivered to the Agent (which shall be delivered no less than five (5) Business Days in advance of the proposed borrowing of Delayed Draw Term Loans) in connection therewith (each such borrowing date, a “Delayed Draw Funding Date”). Each existing Lender shall be offered the opportunity to provide (but, for the avoidance of doubt, shall have no obligation to provide) a portion of the Delayed Draw Term Loan Commitments requested by the Borrower on a pro rata basis based on such existing Lender’s Pro Rata Share of the Term Loans then outstanding; provided that (i) each existing Lender shall be deemed to decline to exercise its right to provide its Pro Rata Share of the Delayed Draw Term Loan Commitments if such Lender does not agree to provide such Delayed Draw Term Loan Commitments within five (5) Business Days after the Borrower delivers a written request for such Delayed Draw Term Loan Commitments to the Agent (on behalf of such Lender) and (ii) the Borrower may offer to additional potential Lenders (in addition to the existing Lenders) the ability to provide Delayed Draw Term Loan Commitments in its reasonable discretion.
(b) The aggregate principal amount of the Delayed Draw Term Loans made on each Delayed Draw Funding Date shall not exceed the aggregate principal amount of the then remaining Delayed Draw Term Loan Commitments (in effect immediately prior to the making of such Delayed Draw Term Loans on such Delayed Draw Funding Date). The portion of each Lender’s Delayed Draw Term Loan Commitment corresponding to the Delayed Draw Term Loan funded by such Delayed Draw Term Loan Lender shall be permanently terminated immediately and without further action upon the funding of such Delayed Draw Term Loan on the applicable Delayed Draw Funding Date. The Delayed Draw Term Loan Commitment shall be permanently terminated immediately and without further action upon the funding of all of the Delayed Draw Term Loans on the Delayed Draw Funding Date(s).
(c) The proceeds of the Delayed Draw Term Loans shall be used (i) to consummate one or both of the First Amendment Acquisitions, (ii) to prepay the ABL Facility Indebtedness and (iii) for general corporate and other working capital purposes.
(d) The Borrower and each Delayed Draw Term Loan Lender shall execute and deliver to the Agent such documentation as the Agent shall reasonably specify to evidence the Delayed Draw Term Loan Commitment of such Delayed Draw Term Lender and, if applicable, the joinder of such Delayed Draw Term Loan Lender to this Agreement and the other Loan Documents.
(e) All other terms of the Delayed Draw Term Loans are as set forth in the First Amendment and this Agreement.
Extension of Closing Date (a) If Paragraph 8(b) is checked and Closing funds from Buyer’s lender(s) are not available on Closing Date due 55 to Consumer Financial Protection Bureau Closing Disclosure delivery requirements (“CFPB Requirements”), 56 then Closing Date shall be extended for such period necessary to satisfy CFPB Requirements, provided such 57 period shall not exceed 10 days.
(b) If an event constituting “Force Majeure” causes services essential for Closing to be unavailable, including the 59 unavailability of utilities or issuance of hazard, wind, flood or homeowners’ insurance, Closing Date shall be 60 extended as provided in STANDARD G.