Conditions Precedent to Purchase. The Purchase is subject to the satisfaction of each of the following conditions on or prior to the Closing Date (any or all of which (except Section 3.01(e)) may be waived by the Managing Agents in their sole and absolute discretion: (a) The Managing Agents shall have received on or before the date hereof each of the items listed on Schedule I hereto, each (unless otherwise indicated) dated the date hereof, in form and substance reasonably satisfactory to the Managing Agents; (b) The Series Supplement shall have become effective in accordance with its terms; (c) All of the conditions precedent set forth in the Indenture to the issuance of the Series 2007-1 Notes shall have been satisfied and all of the terms, covenants, agreements and conditions of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agents; (d) Each of the representations and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document shall be true and correct in all material respects as of the date hereof as though made as of such time (except to the extent that they expressly relate to an earlier or later time); (e) No Amortization Event, Servicer Default or Event of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default shall have occurred and be continuing (before and after giving effect to the Purchase); (f) Immediately after giving effect to the Purchase, no Series 2007-1 Asset Amount Deficiency shall exist and be continuing; (g) All fees required to be paid on or prior to the date hereof in accordance with the Fee Letter and the Administrative Agent Fee Letter shall have been paid in full in accordance with the terms thereof; and (h) Each Managing Agent shall have received a written confirmation from each of the Rating Agencies that the Purchase hereunder will not result in a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such rating.
Appears in 2 contracts
Samples: Note Purchase Agreement (NRT Settlement Services of Missouri LLC), Note Purchase Agreement (Realogy Corp)
Conditions Precedent to Purchase. SECTION 5.01. Conditions to Purchaser's Obligation at First Takedown. The Purchase obligation of Purchaser to purchase the Notes to be issued and sold by the Company at the first Takedown hereunder is subject to the satisfaction of each of the following conditions on or prior to the Closing Date (any or all of which (except Section 3.01(e)) may be waived by the Managing Agents in their sole and absolute discretioncontemporaneously with such Takedown:
(ai) The Managing Agents Each of the conditions to the parties' obligations under the Material Acquisition Documents shall have received been satisfied or, with the prior written consent of Purchaser, waived, (ii) the Acquisition and the Mergers shall have been completed on or before the date hereof each terms set forth in the Material Acquisition Documents and (iii) the aggregate amount of funds required by the items listed on Schedule I hereto, each (unless otherwise indicated) dated the date hereof, in form and substance reasonably satisfactory Company with respect to the Managing Agents;Acquisition (including without limitation for the payment of fees, commissions and expenses) shall not exceed $204,000,000.
(b) The Series Supplement Each of the Material Acquisition Documents, the Financing Documents and the corporate documents shall be in full force and effect and no term or condition thereof shall have become effective in accordance with its terms;been amended, waived or otherwise modified without the prior written consent of Purchaser.
(c) All Holdings shall have received (i) aggregate cash proceeds of not less than $30,000,000 from the issuance and sale to DLJMB of the conditions precedent set forth in Holdings Notes, (ii) aggregate cash proceeds of not less than $45,000,000 from the Indenture issuance and sale to the issuance Initial Investors of the Series 2007-1 Notes shall have been satisfied Holdings Preferred Stock and all (iii) aggregate cash proceeds of not less than $1,000,000 from the issuance and sale to the Initial Investors and management of the terms, covenants, agreements Company and conditions existing stockholders of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agents;Company of Common Stock,
(d) Each of Purchaser shall have received the representations and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made financial statements referred to in this Agreement, the Indenture, the Series Supplement and each other Transaction Document shall be true and correct in all material respects as of the date hereof as though made as of such time (except to the extent that they expressly relate to an earlier or later time);Section 3.05 hereof.
(e) No Amortization EventPurchaser shall have received evidence reasonably satisfactory to it that all governmental, Servicer Default or Event of Default or event that shareholder and third party consents and approvals reasonably necessary in connection with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default Acquisition and the other transactions contemplated by the Financing Documents and by the Material Acquisition Documents (including without limitation any Xxxx-Xxxxx-Xxxxxx filings) have been received and all applicable waiting periods shall have occurred expired without any action being taken by any competent authority that could restrain, prevent or impose any materially adverse conditions on the Acquisition or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be continuing applicable which in the judgment of Purchaser could have any such effect,
(f) There shall exist no action, suit, investigation, litigation or proceeding pending or overtly threatened in any court or before any arbitrator or any governmental instrumentality that purports to affect any Financing Document, any Material Acquisition Document or the Acquisition or any of the other transactions contemplated thereby or hereby, which, if adversely determined, could reasonably be expected to have a material adverse effect on any Financing Document, and Material Acquisition Document or the Acquisition or any of the other transactions contemplated thereby or hereby.
(g) Purchaser shall have received evidence reasonably satisfactory to it that on the date of the Takedown, and after giving effect to the Purchase);Acquisition and the Mergers, there shall be no outstanding Debt of Holdings or any of its Subsidiaries except the Notes, the Holdings Notes, and the Scent Seal Note, and no agreement providing for the incurrence of Debt in the future other than the Permanent Financing and the Revolver.
(fh) Immediately Purchaser shall have received evidence satisfactory to it that on the date of the Takedown, and after giving effect to the PurchaseAcquisition and the Merger, there shall be no Series 2007-1 Asset Amount Deficiency shall exist and be continuing;outstanding preferred stock of Holdings or its Subsidiaries except the Holdings Preferred Stock.
(gi) All fees required to be paid Purchaser shall have received opinions, dated on or prior to the date hereof of the Takedown, of (i) Weil, Gotshal & Xxxxxx LLP, special counsel for the Company and Holdings, substantially in accordance the form of Exhibit B hereto, and (ii) Xxxxx Xxxx & Xxxxxxxx, special counsel for the Purchaser, substantially in the form of Exhibit C.
(j) Holdings and DLJSC shall have executed the Engagement Letter.
(k) All fees and expenses due and payable to Purchaser or DLJSC hereunder, under the Engagement Letter or otherwise in connection with the Fee Letter and the Administrative Agent Fee Letter transactions contemplated hereby, shall have been paid in full in accordance with the terms thereof; andfull.
(h1) Each Managing Agent There shall have received a written confirmation from each occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of the Rating Agencies that the Purchase hereunder will not result in Company and its Subsidiaries, taken as a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such ratingwhole, since September 30, 1997.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Aki Inc), Securities Purchase Agreement (Aki Holding Corp)
Conditions Precedent to Purchase. The Purchase is subject to the satisfaction of each of the following conditions on or prior to the Closing Effective Date (any or all of which (except Section 3.01(e3.01(c)) may be waived by the Managing Agents in their sole and absolute discretion:
(a) The Managing Agents shall have received on or before the date hereof each of the items listed on Schedule I hereto, each (unless otherwise indicated) dated the date hereof, in form and substance reasonably satisfactory to the Managing Agents;
(b) The Series Supplement shall have become effective in accordance with its terms;
(c) All of the conditions precedent set forth in the Indenture to the issuance of the Series 2007-1 Notes shall have been satisfied and all of the terms, covenants, agreements and conditions of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agents;
(d) Each of the representations and warranties of Cartus, CFCCRC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document shall be true and correct in all material respects as of the date hereof as though made as of such time (except to the extent that they expressly relate to an earlier or later time);
(ec) No Amortization Event, Servicer Default or Event of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default shall have occurred and be continuing (before and after giving effect to the Purchase);
(fd) Immediately after giving effect to the Purchase, no Series 2007-1 Asset Amount Deficiency shall exist and be continuing;
(ge) All fees required to be paid on or prior to the date hereof in accordance with the Fee Letter and the Administrative Agent Fee Letter shall have been paid in full in accordance with the terms thereof; and
(hf) Each Managing Agent shall have received a written confirmation from each of the Rating Agencies that the Purchase hereunder will not result in a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such rating.
Appears in 2 contracts
Samples: Note Purchase Agreement (NRT Settlement Services of Missouri LLC), Note Purchase Agreement (Realogy Corp)
Conditions Precedent to Purchase. Section 5.1. Conditions to Purchaser's Obligation at Initial Takedown. The Purchase obligation of Purchaser to purchase the Notes to be issued and sold at the Initial Takedown hereunder is subject to the satisfaction of the following conditions contemporaneously with such Takedown:
(i) Each of the conditions to the parties' obligations under the applicable Material Acquisition Documents shall have been satisfied or, with the prior written consent of Purchaser, waived, (ii) the Acquisition to which the Initial Takedown relates shall have been completed on the terms set forth in the Material Acquisition Documents (as such terms may have been amended or waived with the consent of Purchaser), (iii) the aggregate amount of funds required by the Company with respect to the Sibson Acquisition (including without limitation for the payment of fees, commissions and expenses) shall not exceed $38,000,000 and (iv) the aggregate amount of funds required by the Company with respect to the Delphi Acquisition (including without limitation for the payment of fees, commissions and expenses) shall not exceed $2,000,000;
(b) Each of the Material Acquisition Documents, the Financing Documents and the Company Corporate Documents shall have been duly executed and delivered by the parties thereto and shall be in full force and effect and, subject to Purchaser's sole discretion, no material term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of Purchaser;
(c) Purchaser shall have received the financial statements referred to in Section 3.5 hereof and shall be satisfied with the same in all material respects in Purchaser's sole discretion;
(d) Purchaser shall have received evidence satisfactory to it that all governmental, shareholder and, subject to Purchaser's sole discretion, material third party consents and approvals necessary in connection with the Acquisition to which the Initial Takedown relates and the other transactions contemplated by the Financing Documents and by the Material Acquisition Documents (including without limitation any Hart-Xxxxx-Xxxxxx xxxings) have been received and all applicable waiting periods shall have expired without any action being taken by any competent authority that could restrain, prevent or impose any materially adverse conditions on the Acquisition to which the Initial Takedown relates or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the judgment of Purchaser could have any such effect;
(e) No Credit Party shall have indebtedness for borrowed money other than (i) the Notes and (ii) as listed on Schedule 5.1(e), all of which such indebtedness for borrowed money will contain terms and conditions satisfactory in all material respects to Purchaser in Purchaser's sole discretion. No Credit Party shall have preferred stock issued and outstanding;
(f) Purchaser shall have completed and be satisfied in all respects with its financial, tax, legal, accounting and environmental due diligence investigations;
(g) The corporate, tax, capital and ownership structure (including articles of incorporation, operating or member agreements and by-laws), shareholders agreements and management of the Credit Parties before and after each Acquisition shall, except as contemplated by each Acquisition, be consistent with that previously disclosed to Purchaser, and shall not have been modified, in Purchaser's sole discretion, in any material respect other than without the prior written consent of Purchaser;
(h) Absence of any material adverse change in the business, condition (financial or otherwise), operations, performance, properties, prospects or projections of any Credit Party or any of their respective Subsidiaries, in each case taken as a whole, since the end of the most recently ended period for which financial statements have been provided to Purchaser or in the facts and information as represented to date;
(i) Except as set forth on Schedule 3.6, there shall exist no pending or threatened material litigation, proceedings or investigations which (x) could or purports to affect any Acquisition or the transactions contemplated hereby or (y) could reasonably be expected to have a material adverse effect on the business, assets, debt service capacity, liabilities (including environmental liabilities), financial condition, operations, prospects or projections of the Credit Parties taken as a whole;
(j) Purchaser shall have received satisfactory opinions of counsel to certain of the Credit Parties as to the transactions contemplated hereby, and such corporate resolutions, certificates and other documents as Purchaser shall reasonably request;
(k) Absence of any Event of Default or event that, with notice and/or the passage of time, could reasonably be expected to become an Event of Default and accuracy of all representations and warranties in all material respects;
(l) Absence of any disruption or adverse change in the financial or capital markets generally which could reasonably be expected to materially adversely affect the purchase of the Notes or the refinancings thereof;
(m) Purchaser shall have received necessary consent from lenders to the Credit Parties, including, without limitation, lenders of the KU Debt and the Subsidiary Debt, if any, concerning the anticipated terms and conditions of the Notes, and the Permanent Financing including the application of the proceeds from any such financing;
(n) The Engagement Letter shall have been executed;
(o) Purchaser shall have received a solvency certificate substantially in the form of Exhibit B hereto executed by the Chief Financial Officer, Secretary or sole Member of each Credit Party dated as of the Closing;
(p) Purchaser shall have received a Subsidiary Guaranty in the form of Exhibit C executed by each Credit Party other than the Company; and
(q) All fees and expenses payable to Purchaser or DLJSC hereunder, under the Engagement Letter or otherwise in connection with the transactions contemplated hereby, shall have been paid in full.
Section 5.2. Conditions to Purchaser's Obligations at the Second Takedown. The obligation of Purchaser to purchase the Notes to be issued and sold at the Second Takedown hereunder is subject to the satisfaction of the following conditions on or prior to the Closing Date (any or all of which (except Section 3.01(e)) may be waived by the Managing Agents in their sole and absolute discretioncontemporaneously with such Takedown:
(a) The Managing Agents shall have received on or before the date hereof each of the items listed on Schedule I hereto, each (unless otherwise indicated) dated the date hereof, in form and substance reasonably satisfactory to the Managing Agents;
(b) The Series Supplement shall have become effective in accordance with its terms;
(c) All Each of the conditions precedent set forth in Section 5.1 of this Agreement as applicable, in the Indenture Purchaser's judgment, to the issuance of the Series 2007-1 Notes Delphi Acquisition, shall have been satisfied and all satisfied;
(b) There shall have occurred no material adverse change in the assets, business, financial position, results of operations or prospects of the termsCompany and its Subsidiaries, covenantstaken as a whole, agreements since March 31, 1998 or in the facts and conditions information as represented to Purchaser through closing with respect thereto;
(c) There shall not have occurred any disruption or adverse change in the financial or capital markets generally which could reasonably be expected to materially adversely affect the purchase of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy Notes or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agentsrefinancing thereof;
(d) Each of the The representations and warranties of Cartus, CFC, the Issuer, Credit Parties contained in the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document Financing Documents shall be true and correct in all material respects on and as of the date hereof such Takedown as though if made on and as of such time (except and each of the Credit Parties shall have performed and complied with all covenants and agreements required by the Financing Documents to the extent that they expressly relate be performed by it or complied with by it at or prior to an earlier or later time)such Takedown;
(e) No Amortization Event, Servicer Default or Event of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default There shall have occurred and be continuing (before and after giving effect to the Purchase)not exist any Default;
(f) Immediately after giving effect Purchaser shall have received the Notes to be issued at such Takedown, duly executed by the Purchase, no Series 2007-1 Asset Amount Deficiency shall exist Company in the denominations and be continuing;registered in the names specified in or pursuant to Section 2.2; and
(g) All Purchaser shall have received payment of all fees required and expenses payable to be paid on or for the account of Purchaser hereunder at or prior to the date hereof in accordance with the Fee Letter and the Administrative Agent Fee Letter shall have been paid in full in accordance with the terms thereof; and
(h) Each Managing Agent shall have received a written confirmation from each of the Rating Agencies that the Purchase hereunder will not result in a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such ratingtime.
Appears in 1 contract
Samples: Securities Purchase Agreement (Nextera Enterprises Inc)
Conditions Precedent to Purchase. The Purchase is obligations of the Purchaser to -------------------------------- make purchases of Purchaser Shares and Warrants as set forth in 2(c) and 3 above shall be subject to the prior satisfaction of each of the following conditions on or prior to the Closing Date (any or all of which (except Section 3.01(e)) may be waived by the Managing Agents in their sole and absolute discretion:
(a) The Managing Agents shall have received on or before the date hereof each of the items listed on Schedule I hereto, each (unless otherwise indicated) dated the date hereof, in form and substance reasonably satisfactory to the Managing Agents;
(b) The Series Supplement shall have become effective in accordance with its terms;
(c) All of the conditions precedent set forth in 4(b) below (the Indenture "Conditions Precedent"), or the waiver of the Conditions Precedent by the Purchaser, by written notice to the issuance Company and in the Purchaser's sole discretion.
(a) The following provisions shall also apply with respect to the purchase of such shares and Warrants, notwithstanding anything to the Series 2007-1 Notes contrary in this Agreement:
(i) Until and unless the Conditions Precedent have been and remain satisfied as described above, the Purchaser shall have been satisfied no obligations to purchase such shares or Warrants.
(ii) Notwithstanding (i) above, the Purchaser shall have the option to waive any and all Conditions Precedent set forth in paragraph 4(b), in its sole discretion, and to purchase any or all shares of Preferred listed in 2(c) above (and corresponding Warrants as described in 3 above), at any time or times on or after the termsapplicable Purchase Dates, covenantsrespectively, agreements at the price of $2.15 per share. The Purchaser may exercise such option to waive by written notice to the Company, and conditions the closing of such purchase shall occur within ten (10) days thereafter. The Purchaser's option rights to waive any Condition Precedent and to purchase shares notwithstanding under this Agreementsubparagraph (ii) shall expire within 120 calendar days from the applicable Purchase Date, but in no event shall such option rights be exercised later than March 1, 1992.
(iii) If the Indenture, the Series Supplement Conditions Precedent become and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy remain satisfied (or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise are waived by the Managing Agents;
Purchaser as described above) at any time after one or more applicable Purchase Dates, then on the next occurring Purchase Date (d) Each of the representations and warranties of Cartus, CFC"New Purchase Date"), the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document Purchaser shall be true and correct in all material respects as of the date hereof as though made as of such time (except to the extent that they expressly relate to an earlier or later time);
(e) No Amortization Event, Servicer Default or Event of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default shall have occurred and be continuing (before and after giving effect to the Purchase);
(f) Immediately after giving effect to the Purchase, no Series 2007-1 Asset Amount Deficiency shall exist and be continuing;
(g) All fees required to be paid on or prior to the date hereof in accordance with the Fee Letter and the Administrative Agent Fee Letter shall have been paid in full in accordance with the terms thereof; and
(h) Each Managing Agent shall have received a written confirmation from each of the Rating Agencies that the Purchase hereunder will not result in a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such rating.also be
Appears in 1 contract
Samples: Series E Preferred Stock Purchase Agreement (Jetfax Inc)
Conditions Precedent to Purchase. The Purchase is subject to the satisfaction of each of the following conditions on or prior to the Closing Date (any or all of which (except Section 3.01(e)) may be waived by the Managing Agents in their sole and absolute discretion:):
(a) The Managing Agents shall have received on or before the date hereof Closing Date each of the items listed on Schedule I hereto, each (unless otherwise indicated) dated as of the date hereofClosing Date, in form and substance reasonably satisfactory to the Managing Agents;
(b) The Series Supplement Supplement, substantially in the form set forth herein as Exhibit E, shall have become effective in accordance with its terms;
(c) All of the conditions precedent set forth in the Indenture to the issuance of the Series 20072011-1 Notes shall have been satisfied and all of the terms, covenants, agreements and conditions of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof Closing Date shall have been complied with or otherwise waived by the Managing Agents;
(d) Each of the representations and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document shall be true and correct in all material respects as of the date hereof Closing Date as though made as of such time (except to the extent that they expressly relate to an earlier or later time);
(e) No Amortization Event, Servicer Default or Event of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default shall have occurred and be continuing (before and after giving effect to the Purchase);
(f) Immediately after giving effect to the Purchase, no Series 20072011-1 Asset Amount Deficiency shall exist and be continuing;
(g) All fees required to be paid on or prior to the date hereof Closing Date in accordance with the Fee Letter and the Administrative Agent Fee Letter shall have been paid in full in accordance with the terms thereof; and;
(h) Each Managing Agent of a CP Funding Purchaser Group shall have received a written confirmation from each of the Rating Agencies that the Purchase hereunder will not result in a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such rating;
(i) The Series 2007-1 Notes shall have been redeemed and cancelled, and all amounts owed by the Issuer under the Amended and Restated Note Purchase Agreement relating to the Series 2007-1 Notes, dated as of July 6, 2007, among the Issuer, Cartus, as Servicer, the financial institutions and commercial paper conduits party thereto, and CA-CIB, as Administrative Agent and Lead Arranger shall have been paid in full; and
(j) No Material Adverse Effect shall have occurred.
Appears in 1 contract
Conditions Precedent to Purchase. The Purchase effectiveness of this Agreement is subject to the satisfaction of each of the following conditions condition precedent that Servicer (on or prior to the Closing Date (any or all of which (except Section 3.01(e)AFC’s behalf) may be waived by the Managing Agents in their sole and absolute discretion:
(a) The Managing Agents shall have received received, on or before the date hereof each of hereof, the items listed on Schedule I heretofollowing, each (unless otherwise indicated) dated the date hereof, and each in form and substance reasonably satisfactory to Servicer (acting on AFC’s behalf):
(a) An Originator Assignment Certificate in the Managing Agentsform of Exhibit C from each Originator, duly completed, executed and delivered by such Originator;
(b) The Series Supplement shall have become effective in accordance with its termsA copy of the resolutions of the Board of Directors of each Originator approving this Agreement and the transactions contemplated hereby, certified by the respective Secretary or Assistant Secretary of each Originator;
(c) All Good standing certificates for each Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the conditions precedent set forth in the Indenture to the issuance jurisdiction of the Series 2007-1 Notes shall have been satisfied and all of the terms, covenants, agreements and conditions of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agentssuch Person’s incorporation;
(d) Each Certificate of the representations Secretary or Assistant Secretary of each Originator certifying the names and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document shall be true and correct in all material respects as signatures of the date hereof as though made as of officers authorized on such Person’s behalf to sign the Transaction Documents to be delivered by it (on which certificate Servicer and AFC may conclusively rely until such time as Servicer shall receive from such Person a revised certificate meeting the requirements of this subsection (except to the extent that they expressly relate to an earlier or later timed));
(e) No Amortization EventThe certificate or articles of incorporation or other organizational document of each Originator, Servicer Default duly certified by the Secretary of State of the jurisdiction of such Originator’s incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or Event an Assistant Secretary of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default shall have occurred and be continuing (before and after giving effect to the Purchase)Originator;
(f) Immediately after giving effect Originals of the proper financing statements (Form UCC-1 and UCC-3) that have been duly executed and name each Originator as the assignor and AFC as the assignee (and Calyon New York Branch, as Administrative Agent, for the benefit of the Purchasers, as assignee of AFC) of the Receivables generated by such Originator as may be necessary or, in Servicer’s or the Administrative Agent’s opinion, desirable under the UCC of all appropriate jurisdictions to the Purchaseperfect AFC’s ownership interest in all Receivables and such other rights, no Series 2007-1 Asset Amount Deficiency shall exist accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest may be continuingassigned to it hereunder;
(gi) All fees required A written search report from a Person satisfactory to Servicer listing all effective financing statements that name any Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (f), together with copies of such financing statements (none of which, except for those described in the foregoing subsection (f), shall cover any Receivable or any right related to any Receivable that is of the type described in Section 1.1) which is to be paid on or prior sold to the date hereof in accordance with the Fee Letter AFC hereunder, and the Administrative Agent Fee Letter shall have been paid in full in accordance with the terms thereof; and(ii) tax and judgment lien search reports from a Person satisfactory to Servicer showing no evidence of such liens filed against any Originator;
(h) Each Managing Agent shall have received a written confirmation from A favorable opinion of (i) Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special counsel to Amphenol and the other Originators, and (ii) Xxxxxx X. Xxxxxxx, General Counsel to AFC, Amphenol and the other Originators, each of in form and substance satisfactory to Servicer and the Rating Agencies that the Purchase hereunder will not result in a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such rating.Agent;
Appears in 1 contract
Conditions Precedent to Purchase. Section 5.1. Conditions to Purchaser's Obligation at Initial Takedown. The Purchase obligation of Purchaser to purchase the Notes to be issued and sold at the Initial Takedown hereunder is subject to the satisfaction of each of the following conditions on or prior to the Closing Date (any or all of which (except Section 3.01(e)) may be waived by the Managing Agents in their sole and absolute discretioncontemporaneously with such Takedown:
(ai) The Managing Agents Each of the conditions to the parties' obligations under the Material Acquisition Documents shall have received been satisfied or, with the prior written consent of Purchaser, waived, (ii) the Acquisition shall have been completed on the terms set forth in the Material Acquisition Documents (as such terms may have been amended or before waived with the date hereof each consent of Purchaser) and (iii) the items listed on Schedule I hereto, each (unless otherwise indicated) dated aggregate amount of funds required by the date hereof, in form and substance reasonably satisfactory Company with respect to the Managing AgentsAcquisition (including without limitation for the payment of fees, commissions and expenses) shall not exceed $125,000,000;
(b) The Series Supplement Each of the Material Acquisition Documents, the Financing Documents and the Company Corporate Documents shall be in full force and effect and no term or condition thereof shall have become effective in accordance with its termsbeen amended, waived or otherwise modified without the prior written consent of Purchaser;
(c) All of the conditions precedent set forth in the Indenture to the issuance of the Series 2007-1 Notes Purchaser shall have been satisfied and all of received the terms, covenants, agreements and conditions of this Agreement, the Indenture, the Series Supplement and each other Transaction Document financial statements referred to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agentsin Section 3.5 hereof;
(d) Each Purchaser shall have received evidence satisfactory to it that all governmental, shareholder and third party consents and approvals necessary in connection with the Acquisition and the other transactions contemplated by the Financing Documents and by the Material Acquisition Documents (including without limitation any Xxxx-Xxxxx-Xxxxxx filings) have been received and all applicable waiting periods shall have expired without any action being taken by any competent authority that could restrain, prevent or impose any materially adverse conditions on the Acquisition or such other transactions or that could seek or threaten any of the representations foregoing, and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy no law or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document regulation shall be true and correct applicable which in all material respects as the judgment of the date hereof as though made as of Purchaser could have any such time (except to the extent that they expressly relate to an earlier or later time)effect;
(e) No Amortization Event, Servicer Default or Event of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default Credit Party shall have occurred indebtedness for borrowed money other than (i) the Notes and be continuing (before ii) as listed on Schedule 5. 1 (e), all of which such indebtedness for borrowed money will contain terms and after giving effect conditions satisfactory in all respects to the Purchase)Purchaser. No Credit Party shall have preferred stock issued and outstanding;
(f) Immediately after giving effect to the Purchase, no Series 2007-1 Asset Amount Deficiency Purchaser shall exist have completed and be continuingsatisfied in all respects with its business, financial, tax, legal and environmental due diligence investigations;
(g) All fees required The corporate, tax, capital and ownership structure (including articles of incorporation and by-laws), shareholders agreements and management of the Credit Parties before and after the Acquisition shall, except as contemplated by the Acquisition, be consistent with that previously disclosed to be paid on or prior to the date hereof in accordance with the Fee Letter Purchaser, and the Administrative Agent Fee Letter shall not have been paid in full in accordance with modified other than without the terms thereof; andprior written consent of Purchaser;
(h) Each Managing Agent shall have received a written confirmation from each Absence of any material adverse change in the business, condition (financial or otherwise), operations, performance, properties, prospects or projections of the Rating Agencies that Xxxx Companies, the Purchase hereunder will not result NPR Companies and their subsidiaries, in each case taken as a downgrade or withdrawal whole, since the end of the rating most recently ended fiscal year for which audited financial statements have been provided to Purchaser or in the facts and information as represented to date;
(i) Except as set forth on Schedule 3.6, there shall exist no pending or threatened material litigation, proceedings or investigations which (x) would contest the consummation of the Commercial Paper Notes Acquisition or (y) could reasonably be expected to have a material adverse effect on the business, assets, debt service capacity, liabilities (including environmental liabilities), financial condition, operations, prospects or projections of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such rating.any Credit Party;
Appears in 1 contract
Conditions Precedent to Purchase. The Purchase effectiveness of this Agreement is subject to the satisfaction of each of condition precedent that the following conditions Servicer (on or prior to the Closing Date (any or all of which (except Section 3.01(e)AFC's behalf) may be waived by the Managing Agents in their sole and absolute discretion:
(a) The Managing Agents shall have received received, on or before the date hereof each of hereof, the items listed on Schedule I heretofollowing, each (unless otherwise indicated) dated the date hereof, and each in form and substance reasonably satisfactory to Amphenol (acting on AFC's behalf) and the Managing AgentsAgent:
(a) an Originator Assignment Certificate in the form of EXHIBIT B from the Originator, duly completed, executed and delivered by the Originator;
(b) The Series Supplement shall have become effective in accordance with its termsa copy of the resolutions of the Board of Directors of each of the Originator, Amphenol and AFC approving the transactions contemplated hereby, certified by the respective Secretary or Assistant Secretary of such Person;
(c) All (i) a certificate of compliance, of status or of good standing, as and to the extent applicable, with respect to the Originator issued as of a recent date acceptable to the Servicer by the applicable governmental authority of the conditions Originator's jurisdiction of amalgamation and of each province in which an Obligor is or is likely to be situated if the Originator's registration as an extra-provincial corporation in such Province is required as a condition precedent set forth to the effectiveness or enforceability of AFC's ownership interest in the Indenture Receivables and related rights sold hereunder, and (ii) a certificate of good standing with respect to each of Amphenol and AFC issued as of a recent date acceptable to the issuance Servicer by the Secretary of State of the Series 2007-1 Notes shall have been satisfied and all jurisdiction of the terms, covenants, agreements and conditions of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agentsits incorporation;
(d) Each a certificate of the representations Secretary or Assistant Secretary of: (i) the Originator and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement and each other Transaction Document shall be true and correct in all material respects as of the date hereof as though made as of such time (ii) except to the extent that they expressly relate the certificates delivered in connection with the U.S. Purchase and Sale Agreement remain true and correct, each of Amphenol and AFC, in each case certifying the names and true signatures of the officers authorized on its behalf to an earlier or later timesign the Transaction Documents to be delivered by it (on which certificates the Servicer and AFC may conclusively rely until such time as the Servicer shall receive from any such Person a revised certificate meeting the requirements of this SUBSECTION (D));
(e) No Amortization Eventcopies of the articles of incorporation or other organizational document of the Originator, Servicer Default or Event of Default or event that together with the giving certificate of notice or lapse status issued by the Ministry of time or both would constitute such an Amortization Event, Servicer Default or Event Consumer and Commercial Relations as of Default shall have occurred and be continuing (before and after giving effect a recent date acceptable to the PurchaseServicer, together with a copy of the by-laws of the Originator, each duly certified by the Secretary or an Assistant Secretary of the Originator; CANADIAN PURCHASE AND SALE AGREEMENT - 8
(f) originals (or if not available before the Initial Closing Date, photocopies of such documents or statements accepted for filing) of properly completed and duly executed and registered assignments (including, without limitation, the Originator Assignment Certificate) and/or financing statements, verification statements or other similar statements, with the registration date, time and number stamped thereon, naming the Originator as the debtor/seller and AFC as the secured party/purchaser (and originals of properly completed and duly executed and registered financing change statements, verification statements or other similar statements, with the registration date, time and number stamped thereon, naming the Purchaser (in respect of those jurisdictions in Canada that then have a Personal Property Security Act in force) or Bank of Montreal Trust Company (as Collateral Trustee), as assignee of AFC) of the Receivables generated by the Originator as may be necessary or, in Servicer's or the Agent's opinion, desirable under the UCC of all appropriate jurisdictions to perfect AFC's ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest may be assigned to it hereunder (PROVIDED, that no such registrations shall be required in Nova Scotia, Newfoundland or New Brunswick as a condition to closing);
(fi) Immediately after giving effect A written search report from a Person satisfactory to the PurchaseServicer listing all effective financing statements that name the Originator (under its current name or any previous name) as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to the foregoing SUBSECTION (F), together with copies of such financing statements (none of which, except for those described in the foregoing SUBSECTION (F), shall cover any Receivable or any right related to any Receivable that is of the type described in SECTION 1.1) which is to be sold to AFC hereunder, and (ii) tax and judgment lien search reports from a Person satisfactory to Servicer showing no Series 2007-1 Asset Amount Deficiency shall exist and be continuingevidence of such liens filed against the Originator;
(gh) All fees required evidence of the delivery of favorable opinions of: (i) Xxxxx & XxXxxxxx, special Canadian counsel to Amphenol, AFC and the Originator, and (ii) Xxxxxx, Xxxx & Xxxx, special Canadian counsel to the Agent, in form and substance satisfactory to the Servicer and the Agent;
(i) evidence: (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be paid on or prior executed and delivered in connection herewith and (ii) that each of the conditions precedent to the date hereof in accordance with execution, delivery and effectiveness of such other Transaction Documents has been satisfied to Servicer's satisfaction;
(j) A certificate from an officer of the Fee Letter Originator to the effect that the Servicer and the Administrative Agent Fee Letter Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall have been paid in full in accordance with be placed on each subsequent, data processing report that it generates which are of the terms type that a proposed purchaser or lender would use to evaluate the Receivables, the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL FUNDING CANADIAN PURCHASE AND SALE AGREEMENT - 9 CORP. PURSUANT TO A CANADIAN PURCHASE AND SALE AGREEMENT, DATED AS OF SEPTEMBER 26, 1997, AS AMENDED, AMONG AMPHENOL CORPORATION, AMPHENOL CANADA CORP. AND AMPHENOL FUNDING CORP.; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION PURSUANT TO AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MAY 19, 1997, AS AMENDED, AMONG AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION AND XXXXXXX XXXXX SECURITIES, INC., AS THE AGENT"; and
(hk) Each Managing Agent shall have received a written confirmation from each that: (i) all the Obligors of the Rating Agencies that the Purchase hereunder will not result in Originator have been instructed to deposit all Collections of Portfolio Receivables directly to a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the post office box related Purchaser Group or shall have confirmed to the Administrative Agent relevant Lock-box Account with a Lock-box Bank or (ii) if not so instructed, the Originator will transfer any Collections that no such written confirmation from it receives to the Rating Agencies is necessary Servicer (for AFC's account) pursuant to maintain such ratingSECTION 8.2(A).
Appears in 1 contract
