Common use of Conditions Precedent to Purchases Clause in Contracts

Conditions Precedent to Purchases. No Purchaser shall be obligated to make any Purchases hereunder (including any Reinvestment Purchase) on any date if, as of the date thereof: (a) any representation or warranty of the Seller, the Servicer, the Parent, any Transferor or any Originator contained herein or in any of the other Related Documents shall be untrue or incorrect in any material respect as of such date, either before or after giving effect to the Purchase of Purchaser Interests on such date and to the application of the proceeds therefrom, except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted by this Agreement; (b) any event shall have occurred, or would result from the Purchase of Purchaser Interests on such Purchase Date or from the application of the proceeds therefrom, that constitutes an Incipient Termination Event or a Termination Event; (c) the Facility Termination Date shall have occurred; (d) either before or after giving effect to such Purchase and to the application of the proceeds therefrom, the Capital Investment divided by the Investment Base would exceed 100%; (e) on or prior to such date, the Seller, any Transferor or the Servicer shall have failed to deliver any Monthly Report, Weekly Report, Daily Report or Investment Base Certificate required to be delivered in accordance with Section 5.02 hereof, or the Sale Agreement or Transfer Agreement and such failure shall be continuing; or (f) the Purchaser Agent shall have given written notice to the Seller that it has determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse Effect. The delivery by the Seller of a Capital Purchase Request and the acceptance by the Seller of the funds from such Capital Purchase or any Reinvestment Purchase on any Purchase Date shall be deemed to constitute, as of any such Purchase Date, a representation and warranty by the Seller that the conditions in this Section 3.02 have been satisfied.

Conditions Precedent to Purchases. No Purchaser Buyer’s obligation to pay for Receivables coming into existence after the Initial Cutoff Date shall be obligated subject to make any Purchases hereunder the satisfaction (including any Reinvestment Purchaseor waiver) of further conditions precedent that (a) the Administrative Agent, pursuant to the terms of the Purchase Agreement, shall have received all reports as and when due thereunder; and (b) on the date of each Purchase, the following statements shall be true (and acceptance of the proceeds of any date if, payment for such Receivable shall be deemed a representation and warranty by Originator that such statements are then true): (a) the representations and warranties set forth in Article II shall be true and correct in all material respects (except that the materiality standard in this clause (a) shall not apply to any such representation or warranty that is expressly qualified by a materiality standard or contains any carve-out or exception based on the absence of a Material Adverse Effect by its express terms) on and as of the date thereof: (a) any representation or warranty of the Seller, the Servicer, the Parent, any Transferor or any Originator contained herein or in any of the other Related Documents shall be untrue or incorrect in any material respect as of such Purchase (unless such representation and warranty refers to an earlier date, either before or after giving effect to the Purchase of Purchaser Interests on such date and to the application of the proceeds therefrom, except to the extent that in which case such representation or warranty expressly relates to an shall be true and correct in all material respects on and as of such earlier date and except for changes therein expressly permitted by this Agreementdate); (b) any no event shall have occurredhas occurred and is continuing, or would result from the Purchase of Purchaser Interests on such Purchase Date or from the application of the proceeds therefromPurchase, that constitutes an Incipient a Termination Event or a Potential Termination Event;; and (c) the Facility Termination Date shall have has not occurred; . Notwithstanding the foregoing conditions precedent, upon payment of the Purchase Price for any Receivable (d) either before or after giving effect whether by payment of cash, through proceeds of Subordinated Loans, by offset of amounts owed to Buyer and/or through capital contributions), title to such Receivable and the Related Security and Collections with respect thereto shall vest in Buyer, whether or not the conditions precedent to Buyer’s obligation to pay for such Receivable were in fact satisfied. The failure of Originator to satisfy any of the foregoing conditions precedent, however, shall give rise to a right of Buyer to rescind the related Purchase and direct Originator to pay to Buyer an amount equal to the application of the proceeds therefrom, the Capital Investment divided by the Investment Base would exceed 100%; (e) on or prior Purchase Price payment made with respect to such date, the Seller, any Transferor or the Servicer shall have failed to deliver any Monthly Report, Weekly Report, Daily Report or Investment Base Certificate required to be delivered in accordance with Section 5.02 hereof, or the Sale Agreement or Transfer Agreement and such failure shall be continuing; or (f) the Purchaser Agent shall have given written notice to the Seller that it has determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse Effect. The delivery by the Seller of a Capital Purchase Request and the acceptance by the Seller of the funds from such Capital Purchase or any Reinvestment Purchase on any Purchase Date shall be deemed to constitute, as of any such Purchase Date, a representation and warranty by the Seller that the conditions in this Section 3.02 have been satisfiedReceivables related thereto.

Conditions Precedent to Purchases. No Purchaser Buyer’s obligation to pay for Receivables coming into existence after the Initial Cutoff Date shall be obligated subject to make any Purchases hereunder the satisfaction of further conditions precedent that (including any Reinvestment Purchasea) the Administrative Agent, pursuant to the terms of the Purchase Agreement, shall have received all reports as and when due thereunder; and (b) on the date of each Purchase, the following statements shall be true (and acceptance of the proceeds of any date if, payment for such Receivable shall be deemed a representation and warranty by Originator that such statements are then true): (a) the representations and warranties set forth in Article II shall be true and correct in all material respects (except that the materiality standard in this clause (a) shall not apply to any such representation or warranty that is expressly qualified by a materiality standard or contains any carve-out or exception based on the absence of a Material Adverse Effect by its express terms) on and as of the date thereof: (a) any representation or warranty of the Seller, the Servicer, the Parent, any Transferor or any Originator contained herein or in any of the other Related Documents shall be untrue or incorrect in any material respect as of such Purchase (unless such representation and warranty refers to an earlier date, either before or after giving effect to the Purchase of Purchaser Interests on such date and to the application of the proceeds therefrom, except to the extent that in which case such representation or warranty expressly relates to an shall be true and correct in all material respects on and as of such earlier date and except for changes therein expressly permitted by this Agreementdate); (b) any no event shall have occurredhas occurred and is continuing, or would result from the Purchase of Purchaser Interests on such Purchase Date or from the application of the proceeds therefromPurchase, that constitutes an Incipient a Termination Event or a Potential Termination Event;; and (c) the Facility Termination Date shall have has not occurred; . Notwithstanding the foregoing conditions precedent, upon payment of the Purchase Price for any Receivable (d) either before or after giving effect whether by payment of cash, through proceeds of Subordinated Loans, by offset of amounts owed to Buyer and/or through capital contributions), title to such Receivable and the Related Security and Collections with respect thereto shall vest in Buyer, whether or not the conditions precedent to Buyer’s obligation to pay for such Receivable were in fact satisfied. The failure of Originator to satisfy any of the foregoing conditions precedent, however, shall give rise to a right of Buyer to rescind the related Purchase and direct Originator to pay to Buyer an amount equal to the application of the proceeds therefrom, the Capital Investment divided by the Investment Base would exceed 100%; (e) on or prior Purchase Price payment made with respect to such date, the Seller, any Transferor or the Servicer shall have failed to deliver any Monthly Report, Weekly Report, Daily Report or Investment Base Certificate required to be delivered in accordance with Section 5.02 hereof, or the Sale Agreement or Transfer Agreement and such failure shall be continuing; or (f) the Purchaser Agent shall have given written notice to the Seller that it has determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse Effect. The delivery by the Seller of a Capital Purchase Request and the acceptance by the Seller of the funds from such Capital Purchase or any Reinvestment Purchase on any Purchase Date shall be deemed to constitute, as of any such Purchase Date, a representation and warranty by the Seller that the conditions in this Section 3.02 have been satisfiedReceivables related thereto.

Conditions Precedent to Purchases. No Purchaser The Borrowers’ ability to use Restricted Funds for a Proposed Purchase shall be obligated subject to make any Purchases hereunder the further conditions precedent that: (including any Reinvestment i) An Event of Default has not occurred and is not continuing or an Event of Default would not result from the Proposed Purchase; (ii) on any date if, No default has occurred and is continuing by either XXX or XFSC with respect to the Claims Purchase Agreement; (iii) The representations and warranties contained in this Agreement or contained in the other Transaction Documents are true and correct as of the date thereof: (a) any representation or warranty of the Seller, the Servicer, the Parent, any Transferor or any Originator contained herein or in any of the other Related Documents shall be untrue or incorrect in any material respect as of such date, either before or after giving effect to the Purchase of Purchaser Interests on such date and to the application of the proceeds therefromProposed Purchase, except to the extent that any such representation or warranty expressly relates is stated to relate solely to an earlier date date, in which case such representation or warranty shall be true and except for changes therein expressly permitted by this correct on and as of such earlier date; (iv) The Prescription Claims set forth in the Proposed Purchase are to be purchased under the terms of and in accordance with the Claims Purchase Agreement; (bv) any event The Borrowers shall have occurredprovided to the Lender a certificate, in form and detail reasonably satisfactory to the Lender, setting forth the calculation of the available Borrowing Base, executed on behalf of the Borrowers by officers of the Borrowers (the “Borrowing Base Certificate”), and the Lender shall be satisfied that the Proposed Purchase does not exceed the available Borrowing Base; and (vi) Since the date of the most recently filed financial statements of the Borrowers, there has been no change in either of the Borrowers’ business, properties or condition (financial or otherwise) that has had or would result from the Purchase of Purchaser Interests on such Purchase Date or from the application of the proceeds therefrom, that constitutes an Incipient Termination Event or a Termination Event; (c) the Facility Termination Date shall have occurred; (d) either before or after giving effect to such Purchase and to the application of the proceeds therefrom, the Capital Investment divided by the Investment Base would exceed 100%; (e) on or prior to such date, the Seller, any Transferor or the Servicer shall have failed to deliver any Monthly Report, Weekly Report, Daily Report or Investment Base Certificate required to be delivered in accordance with Section 5.02 hereof, or the Sale Agreement or Transfer Agreement and such failure shall be continuing; or (f) the Purchaser Agent shall have given written notice to the Seller that it has determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse EffectEffect (as defined in Section 3.1). The delivery Each request for a Proposed Purchase by the Seller of a Capital Purchase Request and the acceptance by the Seller of the funds from such Capital Purchase or any Reinvestment Purchase on any Purchase Date Borrowers shall be deemed to constitute, as of any such Purchase Date, constitute a representation and warranty by the Seller each Borrower that the conditions contained in this Section 3.02 1.5(d) have been satisfied.

Conditions Precedent to Purchases. No Each Purchase from the Seller by the Purchaser shall be obligated subject to make any Purchases hereunder (including any Reinvestment Purchase) on any date if, as of the date thereoffollowing conditions precedent: (a) any representation Prior to the initial Purchase Date, (i) the Seller shall have delivered to the Purchaser a copy of each written notice delivered to or warranty received by Payors in the form attached as Exhibit B; (ii) Seller shall have delivered to Purchaser (A) audited financial statements as of December 31, 2001 and for the year then ended, and (B) unaudited interim financial statements for the year to date period ended November 30, 2002; (iii) Seller shall have delivered to Purchaser (A) a secretary's certificate of Seller in the form attached hereto as Exhibit C; (B) an opinion of counsel in the form of Exhibit D hereto; (C) evidence, satisfactory to Purchaser, that Seller's monthly receipts are collected into a lockbox at a financial institution acceptable to Purchaser; (D) references, satisfactory to Purchaser, from certain trade vendors; and (E) subordination agreements or termination statements from creditors of Seller relating to security interests in Seller's accounts receivable or customer base; (iv) the Purchaser shall have (A) received background checks on Rolla Huff, Joe Wetzel, and Gregg Clevenger, the Servicerresults of which shxxx xx xxxisxxxxxxx xx the Pxxxxxxxx xx xxx sole discretion; (B) completed its due diligence review of Seller's business; (C) determined, in its sole discretion, that Seller is in compliance with any and all regulatory and administrative requirements relating to its business, (D) received and reviewed Seller's Plan of Reorganization, and (E) received evidence, satisfactory to Purchaser that Seller's lenders have released any and all security interests in Sellers' Receivables and Customer Base and that any other Seller debt is fully subordinated to Purchaser; (v) Seller shall have paid the Parent, any Transferor or any Originator contained herein or Purchase Commitment Fee; and (vi) Purchaser shall have received the guaranty of Mpower Holding Corporation in any a form acceptable to Purchaser and Seller. (b) Prior to the initial Purchase Date and each subsequent Purchase Date, (i) no Event of Seller Default shall have occurred and the other Related Documents Seller shall be untrue or incorrect in any compliance in all material respect as respects with each of such date, either before or after giving effect to the Purchase its covenants and representations set forth in Article V of Purchaser Interests on such date and to the application of the proceeds therefrom, except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted by this Agreement; (b) any event shall have occurred, or would result from the Purchase of Purchaser Interests on such Purchase Date or from the application of the proceeds therefrom, that constitutes an Incipient Termination Event or a Termination Event; (cii) the Facility Termination Date shall not have occurred; (diii) either before or after giving effect the Seller shall have delivered to such Purchase and to Purchaser a corporate certificate of Seller in the application of the proceeds therefrom, the Capital Investment divided by the Investment Base would exceed 100%form attached hereto as Exhibit E; (eiv) on or prior to such date, the Seller, any Transferor or the Servicer Seller shall have failed to deliver any Monthly Report, Weekly Report, Daily Report or Investment Base Certificate taken such action as is reasonably required to be delivered in accordance with Section 5.02 hereof, or the Sale Agreement or Transfer Agreement and such failure shall be continuing; or (f) the Purchaser Agent shall have given written notice to the Seller that it has determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse Effect. The delivery by the Seller of a Capital Purchase Request and the acceptance by the Seller address issues arising out of the funds from such Capital Purchase or any Reinvestment Purchase on any Purchase Date shall be deemed to constitute, audits conducted by Purchaser as of any such Purchase Date, a representation and warranty contemplated by the Seller that the conditions in this Section 3.02 have been satisfied.Agreement; and

Conditions Precedent to Purchases. No Purchaser shall be obligated to make any Purchases hereunder (including any Reinvestment Purchase) on any date if, as of the date thereof: (a) any representation or warranty of the Seller, the Servicer, the Parent, any Transferor Servicer or any Originator contained herein or in any of the other Related Documents shall be untrue or incorrect in any material respect as of such date, either before or after giving effect to the Purchase of Purchaser Interests on such date and to the application of the proceeds therefrom, except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted by this Agreement; (b) any event shall have occurred, or would result from the Purchase of Purchaser Interests on such Purchase Date or from the application of the proceeds therefrom, that constitutes an Incipient Termination Event or a Termination Event; (c) the Facility Termination Date shall have occurred; (d) either before or after giving effect to such Purchase and to the application of the proceeds therefrom, the Capital Investment divided by the Investment Base would exceed 100%;; or (e) on or prior to such date, the Seller, any Transferor Seller or the Servicer shall have failed to deliver any Monthly Report, Weekly Report, Daily Report or Investment Base Certificate required to be delivered in accordance with Section 5.02 hereof, hereof or the Sale Agreement or Transfer Agreement and such failure shall be continuing; or (f) the Purchaser Agent shall have given written notice to the Seller that it has determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse Effect. The delivery by the Seller of a Capital Purchase Request and the acceptance by the Seller of the funds from such Capital Purchase or any Reinvestment Purchase on any Purchase Date shall be deemed to constitute, as of any such Purchase Date, a representation and warranty by the Seller that the conditions in this Section 3.02 have been satisfied.

Conditions Precedent to Purchases. No Purchaser shall be obligated The Purchasers' obligation to make fund the Purchase Price of any Purchases hereunder purchases of Mortgage Loans on any Purchase Date (including any Reinvestment Purchasethe initial Purchase Date) on any date if, as and the right of the date thereof: (a) any representation Seller to sell one or warranty of the Seller, the Servicer, the Parent, any Transferor or any Originator contained herein or in any of the other Related Documents shall be untrue or incorrect in any material respect as of such date, either before or after giving effect to the Purchase of Purchaser Interests on such date and to the application of the proceeds therefrom, except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted by this Agreement; (b) any event shall have occurred, or would result from the Purchase of Purchaser Interests on such Purchase Date or from the application of the proceeds therefrom, that constitutes an Incipient Termination Event or a Termination Event; (c) the Facility Termination Date shall have occurred; (d) either before or after giving effect to such Purchase and to the application of the proceeds therefrom, the Capital Investment divided by the Investment Base would exceed 100%; (e) on or prior to such date, the Seller, any Transferor or the Servicer shall have failed to deliver any Monthly Report, Weekly Report, Daily Report or Investment Base Certificate required to be delivered in accordance with Section 5.02 hereof, or the Sale Agreement or Transfer Agreement and such failure shall be continuing; or (f) the Purchaser Agent shall have given written notice to the Seller that it has determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse Effect. The delivery by the Seller of a Capital Purchase Request and the acceptance by the Seller of the funds from such Capital Purchase or any Reinvestment Purchase more Mortgage Loans on any Purchase Date shall be deemed subject to constitutethe satisfaction (or waiver by the Funding Agents) of each of the conditions set forth in Section 3.01 and the following conditions precedent: (a) With respect to each Purchase Date, the Seller shall have delivered to the Administrative Agent each of the items required under Sections 2.01(b) and (c). (b) With respect to each Purchase Date, the Custodian shall have delivered to the Administrative Agent a Trust Receipt certifying that (A) on the applicable date of purchase, the Custodial Files with respect to each Mortgage Loan are in its custody, and, as of any the applicable date, are being held by such Custodian for the benefit of the Purchasers and (B) with respect to Wet Loans, that the Custodian has received the related Purchase Date Notice. (c) With respect to each Purchase Date, prior to 11:00 a.m. (New York time) on such Purchase Date, the Administrative Agent shall have received a fully executed valid and enforceable Takeout Commitment and Trade Confirmation from an Approved Takeout Investor and a valid and enforceable Trade Assignment for each Takeout Commitment with respect to each Mortgage Loan, executed by the Seller. (d) After giving effect to the purchase of such Mortgage Loans, the Concentration Limits will not be exceeded. (e) After giving effect to the purchase of such Mortgage Loans, the aggregate outstanding balance of all Mortgage Loans which are Wet Loans and subject to this Agreement as of such date does not exceed 10% of the Maximum Purchase Limit as of such date. (f) After giving effect to the purchase of such Mortgage Loans, the aggregate outstanding balance of all Mortgage Loans which are FHA Loans or VA Loans and subject to this Agreement as of such date does not exceed 20% of the Maximum Purchase Limit as of such date. (g) After giving effect to the purchase of such Mortgage Loans, the aggregate outstanding balance of all Mortgage Loans which are Option ARM Loans and subject to this Agreement as of such date does not exceed 25% of the Maximum Purchase Limit as of such date. (h) After giving effect to the purchase of such Mortgage Loans, the aggregate outstanding balance of all Mortgage Loans which have a term of maturity of over 30 years and are subject to this Agreement as of such date does not exceed 10% of the Maximum Purchase Limit as of such date. (i) After giving effect to the purchase of such Mortgage Loans, the aggregate outstanding balance of all Mortgage Loans which are supported by second lien Mortgages and subject to this Agreement as of such date does not exceed 15% of the Maximum Purchase Limit as of such date. (j) After giving effect to the purchase of such Mortgage Loans and as of such Purchase Date, (i) the aggregate outstanding balance of all Mortgage Loans subject to this Agreement as of such date and which were originated more than 90 days prior to such date does not exceed 10% of the Maximum Purchase Limit as of such date, (ii) the aggregate outstanding balance of all Mortgage Loans subject to this Agreement as of such date and which have been subject to this Agreement for more than 60 days does not exceed 10% of the Maximum Purchase Limit, and (iii) no Mortgage Loan as of such date has been subject to this Agreement for more than 180 days. (k) The representations and warranties of the Seller and the Servicer contained in this Agreement or any Principal Agreement (other than those representations and warranties that, by their express terms, are limited to the effective date of the document or agreement in which they are initially made) shall be true and correct in all material respects on and as of such Purchase Date. (l) No Termination Event or Potential Termination Event shall have occurred and be continuing, or would result from such Purchase (unless such Termination Event or Potential Termination Event, as applicable, has been waived in writing by the Funding Agents), and no change or event that constitutes a Material Adverse Effect shall have occurred and be continuing as of the date of such Purchase. (m) This Agreement and each of the other Principal Agreements are in full force and effect. (n) Each of the Seller's, the Servicer's and the Performance Guarantors' representations and warranties in this Agreement and each of the other Principal Agreements to which it is a party and in any officer's certificate delivered to the Administrative Agent or Funding Agents in connection herewith or therewith shall be true and correct in all material respects on and as of the date hereof and such Purchase Date, with the same effect as though such representations and warranties had been made on and as of such date, and the Seller, the Servicer and the Performance Guarantors shall have complied with all the agreements and satisfied all the conditions under this Agreement and each of the other Principal Agreements to which it is a party in all material respects on its part to be performed or satisfied at or prior to the date hereof or Purchase Date, as applicable (the acceptance of any Purchase Price shall be deemed to constitute a representation and warranty by the Seller and the Servicer that the conditions foregoing statements are true). (o) No change shall have occurred in this Section 3.02 any law, rule or regulation that would prohibit the consummation of any transaction contemplated hereby, that would impose limits on the amounts that the Purchasers may legally receive or that would impose a material tax or levy (other than Excluded Taxes or a tax or levy covered by the indemnity provisions set forth in Sections 7.02 and 7.03 hereof) on the Net Investment or payments received in respect of the Net Investment. (p) No action, proceeding or investigation shall have been satisfiedinstituted or threatened, nor shall any order, judgment or decree have been issued or proposed to be issued by any court, agency or authority to set aside, restrain, enjoin or prevent the consummation of any transaction contemplated hereby or seeking material damages against the Funding Agents, Administrative Agent or Purchasers in connection with the transactions contemplated by the Principal Agreements. (q) The Seller shall have delivered to the Administrative Agent for filing, all UCC-1 financing statements or other instruments in respect of the Mortgage Loans and other Collateral related thereto as required by the Administrative Agent in order to perfect the Administrative Agents' and the Purchasers' security interest in such Mortgage Loans. (r) The Seller shall have delivered to the Administrative Agent a sufficient number of originals such that the Administrative Agent may have an executed original thereof, of such other documents, certificates and opinions of counsel, including (i) such other documents as may be necessary to perfect or maintain the priority of any Lien granted or intended to be granted hereunder and including favorable written opinions of counsel with respect thereto and (ii) such documents and certificates to confirm the Seller's, the Servicer's and the Performance Guarantors' compliance with the Principal Agreements, in each case as the Administrative Agent may reasonably request. (s) The Collection Account shall be established and in existence and free from any Lien other than pursuant to the Collection Account Control Agreement. (t) The Termination Date shall not have occurred. (u) The aggregate outstanding balance of all Mortgage Loans which have been subject to this Agreement since the date hereof and which have become Fall-Out Loans does not exceed 10% of the aggregate Purchase Prices for all purchases outstanding at such time. (v) Each Mortgage Loan subject to such purchase on such date shall have an interest rate of not less than 30-day LIBOR determined as of such day plus 0.75%.