Conditions of Purchase Purchaser's obligation to purchase and pay for Eligible Loans in a Portfolio hereunder shall be subject to the following conditions precedent:
(a) the Eligible Loans in the Portfolio, aggregated with the other Eligible Loans that have been sold to Purchaser by Seller if appropriate, shall meet the requirements described in Section 3.1 hereof;
(b) all representations, warranties and statements by or on behalf of Seller contained in this Agreement are true on the Scheduled Sale Date;
(c) any notification to or approval by the Secretary or Guarantee Agency required by the Higher Education Act or the Guarantee Agreement as a condition to the assignment of Eligible Loans shall have been made or received and evidence thereof delivered to both Purchaser and the Trustee;
(d) the entire interest of Seller in each Eligible Loan shall have been duly assigned by endorsement, such endorsement to be without recourse except as provided in Article V hereof;
(e) the Seller shall, at its own expense, indicate in its files that the Student Loans sold on such date have been sold to the Purchaser pursuant to this Agreement and pledged and assigned by the Purchaser to the Trustee for the benefit of the Registered Owners, and the Seller shall deliver to the Purchaser a Schedule of Student Loans certified by the Chairman, the President, the Vice President or the Treasurer of the Seller to be true, correct and complete as of the date thereof. Further, the Seller hereby agrees that the computer files maintained by the Seller as Servicer will bear an indication reflecting that the Student Loans sold to the Purchaser pursuant to this Agreement are owned by the Purchaser; and
(f) prior to or on each Scheduled Sale Date, the Seller shall record and file, at its own expense, appropriate UCC-3 termination statements with respect to any previous liens on such Student Loans being sold and purchased hereunder.
Conditions of Purchases SECTION 3.01.
Conditions to Obligations of Purchaser The obligation of Purchaser to consummate the Closing is subject to the satisfaction, or the waiver at Purchaser’s sole and absolute discretion, of all the following further conditions:
(a) The Company shall have duly performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of the Company contained in this Agreement and in any certificate delivered by the Company pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and as of the Closing Date as if made at and as of such date, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and provided that in each case in that to the extent such representation or warranty is made in ARTICLE IV only as of a specific date, such representation or warranty shall speak only as of such specific date.
(c) Since the Agreement Date, no Company Material Adverse Effect shall have occurred and be continuing.
(d) Purchaser shall have received a certificate signed by either the Chief Executive Officer or the Chief Financial Officer of the Company certifying that each of the conditions set forth in Sections 9.2(a), 9.2(b) and 9.2(c) have been satisfied.
(e) Purchaser shall have received certificates signed by the corporate secretary of the Company and the Sellers, respectively, attaching and certifying to the accuracy of the following: (i) a copy of the memorandum and articles of association of the Company, certified as of a recent date by the Secretary of the Company, (ii) copies of the Company’s certificate of incorporation and certificates of incorporation on change of name; (iii) copies of resolutions duly adopted by the board of directors of the Company and the Seller authorizing this Agreement and the transactions contemplated hereby and thereby, (iv) signatures of the officer(s) executing this Agreement and any certificate or document to be delivered pursuant hereto, together with evidence of the incumbency of such Secretary, and (v) a recent good standing certificate regarding the Company and the Seller from each jurisdiction in which the Company and the Seller organized or is qualified to do business.
Conditions of Closing The Closing shall be held at the offices of the Investor or its counsel. The obligations of the Placement Agent hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Investor herein as of the date hereof and as of the Date of Closing (the "Closing Date") with respect to the Company or the Investor, as the case may be, as if it had been made on and as of such Closing Date; the accuracy on and as of the Closing Date of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company and the Investor on and as of the Closing Date of its covenants and obligations hereunder and to the following further conditions:
A. Upon the effectiveness of a registration statement covering the Standby Equity Distribution Agreement, the Investor and the Placement Agent shall receive the opinion of Counsel to the Company, dated as of the date thereof, which opinion shall be in form and substance reasonably satisfactory to the Investor, their counsel and the Placement Agent.
B. At or prior to the Closing, the Investor and the Placement Agent shall have been furnished such documents, certificates and opinions as it may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Agreement and the Offering Materials, or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained.
C. At and prior to the Closing, (i) there shall have been no material adverse change nor development involving a prospective change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Offering Materials; (ii) there shall have been no transaction, not in the ordinary course of business except the transactions pursuant to the Securities Purchase Agreement entered into by the Company on the date hereof which has not been disclosed in the Offering Materials or to the Placement Agent in writing; (iii) except as set forth in the Offering Materials, the Company shall not be in default under any provision of any instrument relating to any outstanding indebtedness for which a waiver or extension has not been otherwise received; (iv) except as set forth in the Offering Materials, the Company shall not have issued any securities (other than those to be issued as provided in the Offering Materials) or declared or paid any dividend or made any distribution of its capital stock of any class and there shall not have been any change in the indebtedness (long or short term) or liabilities or obligations of the Company (contingent or otherwise) and trade payable debt; (v) no material amount of the assets of the Company shall have been pledged or mortgaged, except as indicated in the Offering Materials; and (v) no action, suit or proceeding, at law or in equity, against the Company or affecting any of its properties or businesses shall be pending or threatened before or by any court or federal or state commission, board or other administrative agency, domestic or foreign, wherein an unfavorable decision, ruling or finding could materially adversely affect the businesses, prospects or financial condition or income of the Company, except as set forth in the Offering Materials.
D. If requested at Closing the Investor and the Placement Agent shall receive a certificate of the Company signed by an executive officer and chief financial officer, dated as of the applicable Closing, to the effect that the conditions set forth in subparagraph (C) above have been satisfied and that, as of the applicable closing, the representations and warranties of the Company set forth herein are true and correct.
E. The Placement Agent shall have no obligation to insure that (x) any check, note, draft or other means of payment for the Common Stock will be honored, paid or enforceable against the Investor in accordance with its terms, or (y) subject to the performance of the Placement Agent's obligations and the accuracy of the Placement Agent's representations and warranties hereunder, (1) the Offering is exempt from the registration requirements of the 1933 Act or any applicable state "Blue Sky" law or (2) the Investor is an Accredited Investor.
Obligations of Purchaser The obligations of the Purchaser under this Receivables Purchase Agreement shall not be affected by reason of any invalidity, illegality or irregularity of any Receivable.
Conditions to the Obligations of Purchaser The obligations of Purchaser to consummate the transactions contemplated hereby to occur at the Closing are subject to the satisfaction of each the following conditions, unless waived in whole or in part in writing by Purchaser:
(a) The representations and warranties of Seller in this agreement must be true and correct in all material respects (provided that any representation or warranty contained herein that is qualified by a materiality or material adverse effect qualification will not be so qualified for purposes of determining the existence of any breach thereof by Seller) as of the date of this agreement and as of the Closing Date as though made on and as of the Closing Date (except for any representation or warranty that is limited to an earlier date, in which case such representation or warranty shall have been true and correct only as of such earlier date);
(b) Seller must have performed in all material respects all of his obligations required by this agreement to be performed by him on or before the Closing Date;
(c) Seller must have delivered to Purchaser a certificate in form and substance satisfactory to Purchaser, dated the Closing Date and signed by Seller, as to the satisfaction of the conditions in the foregoing subsections;
(d) Seller must have delivered to Purchaser or other specified persons the documents, instruments, certificates and other items required to be delivered by Seller pursuant to section 5.3;
(e) There must not be in effect any temporary restraining order, preliminary or permanent injunction, stay or other order issued by any Governmental Authority preventing the consummation of the transactions contemplated hereby to occur at the Closing; and
(f) No law must have been enacted, issued, enforced, entered, or promulgated that prohibits or makes illegal the consummation of the transactions contemplated hereby.
Conditions to Obligations of Buyer and Seller The obligations of Buyer and Seller to complete the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of the following conditions:
Conditions of the Purchasers’ Obligations at Closing The obligations of the Purchaser to the Company under this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
Conditions Precedent to Obligations of Purchaser The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of Seller set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that those representations and warranties that are modified as to materiality or contain a qualification referring to a “Material Adverse Effect” or any similar modification or qualification shall be true and correct in all respects as of said dates;
(b) Seller shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an authorized officer of Seller, dated the Closing Date, certifying that the conditions contained in Sections 9.1(a) and 9.1(b) have been fulfilled;
(d) there shall not be in effect on the Closing Date any Order or Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by this Agreement or any of the Transaction Documents or that could reasonably be expected to otherwise result in a material diminution of the benefits of the transactions contemplated by this Agreement or any of the Transaction Documents to Purchaser, and there shall not be pending or threatened on the Closing Date any action in, before or by any Governmental Body that could reasonably be expected to result in the issuance of any such Order or the enactment, promulgation or deemed applicability of any such Law to Purchaser or the transactions contemplated by this Agreement or any of the Transaction Documents;
(e) there shall not be any action, suit, or proceeding pending or threatened before any Governmental Body that could reasonably be expected to (i) prevent consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) have a Seller Material Adverse Effect on the right of Purchaser to own the Purchased Shares or to own and operate the Purchased Assets (and no such Order shall be in effect);
(f) [Reserved];
Conditions Precedent to the Obligations of Purchaser The obligation of Purchaser to consummate the transaction contemplated hereunder shall be subject to the fulfillment on or before the Closing Date of each of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to, the items provided for in Section 4.6;
(b) all of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement);
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date;
(d) Seller shall have paid off or caused to be removed any Monetary Liens or arranged for the payoff or removal of the same concurrent with the Closing pursuant to Section 4.8;
(e) the Title Company shall be irrevocably committed, upon payment of the applicable Title Policy premium, to issue to Purchaser, at Purchaser’s expense, the Title Policy including an ALTA 15-06 endorsement (non-imputation – full equity transfer); and
(f) the closing date under the Related Agreements shall be the same as the Closing Date hereunder, and the closing under the Related Agreements shall occur simultaneously with the Closing hereunder, unless any Related Agreement is terminated pursuant to the terms thereof as the result of Major Damage. Notwithstanding anything to the contrary in this Agreement, in the event the sale of the Property as contemplated hereunder is not consummated solely due to the failure of the Title Company to be irrevocably committed, upon payment of the applicable Title Policy premium, to issue an ALTA 15-06 endorsement to the Title Policy, and Purchaser has notified Seller in writing of such circumstance and is not in default under this Agreement, Purchaser shall be entitled, as its sole remedy, to receive the return of the Deposit, together with reimbursement from Seller for all of Purchaser’s costs and expenses incurred in connection with this Agreement in an amount not to exceed $50,000, in which event this Agreement shall be terminated and neither Seller nor Purchaser shall have any obligation under this Agreement except obligations which expressly survive the termination of this Agreement.
