Representations and Warranties of the Collection Agent. The Collection Agent represents and warrants to and, where applicable, agrees with each of the Secured Parties, that: (a) The Collection Agent is a limited liability company duly formed, validly existing and in good standing under the jurisdiction named at the beginning hereof and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect. (b) The execution, delivery and performance by the Collection Agent of this Agreement and any other documents to be delivered by it hereunder (i) are within the Collection Agent’s limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) do not contravene (1) the Collection Agent’s certificate of formation or limited liability company agreement, (2) any law, rule or regulation applicable to the Collection Agent, (3) any contractual restriction binding on or affecting the Collection Agent or its property (other than in an immaterial manner), or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Collection Agent or its property, and (iv) do not result in or require the creation of any Lien upon or with respect to any of its properties. This Agreement has been duly executed and delivered by the Collection Agent. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Collection Agent of this Agreement or any other document to be delivered by it hereunder except such as (i) have been made or obtained and are in full force and effect and (ii) where the failure to make or obtain could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or the ability of the Borrower to assign or collect the Receivables hereunder (other than in an immaterial manner). (d) This Agreement constitutes the legal, valid and binding obligation of the Collection Agent enforceable against the Collection Agent in accordance with its terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (e) There is no pending or, to the Collection Agent’s knowledge, threatened action, investigation or proceeding affecting the Collection Agent or any of its Subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of the Collection Agent or any of its Subsidiaries or the ability of the Collection Agent to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement, except any such action, investigation or proceeding that the Collection Agent certifies to the Administrative Agent that, in the best judgment of the Collection Agent, if determined adversely, will not have a material impact on the ability of the Collection Agent to fulfill its duties hereunder, or result in a Lien on the Collateral. (f) The Collection Agent has not intentionally (i) misstated any calculation of Eligible Receivables or Net Receivables Balance hereunder (other than in an immaterial amount and based on good faith estimates utilized in the calculation thereof), or (ii) misrepresented any Receivable as qualifying as an Eligible Receivable or intentionally included such misrepresented Receivable in the Net Receivables Balance at the time so included. (g) Each Monthly Report (if prepared by the Collection Agent or one of its Affiliates, or to the extent that information contained therein is supplied by the Collection Agent or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Collection Agent to the Administrative Agent, the Managing Agents or the Lenders in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, the Managing Agents or the Lenders, as the case may be, at such time) as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Collection Agent represents only that it acted in good faith and utilized assumptions that the Collection Agent believed to be reasonable at the time made. (h) The Collection Agent has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles), in each case, other than as to which a failure to do so could reasonably be expected to result in a Material Adverse Effect. (i) All required Notices have been prepared and delivered to each of its Obligors (or, in the case of a Governmental Entity, its fiscal intermediary), and all invoices issued after the Closing Date bear only the appropriate remittance instructions for payment direction to a Lock-Box or a Collection Accounts, as the case may be. No direction is in effect directing Obligors to remit payments on Receivables other than to a Lock-Box or a Collection Account. (j) Each of the Collection Accounts has been established in the name an Originator by a Collection Account Bank, and each Concentration Account has been established in the name of the Borrower by a Concentration Account Bank. Neither the Collection Agent nor the Borrower has established any lock-box, lock-box account or other deposit account for the receipt of Collections other than the Lock-Boxes and Collection Accounts. Each Lock-Box is linked to a Collection Account. Each Collection Account has been set up to so that all available funds automatically sweep to the applicable Concentration Account at the end of each Business Day. The Collection Agent has taken, or has caused to be taken, all actions necessary or advisable to assure that all Collections are received in the Lock-Boxes and Collection Accounts. The Collection Agent will not, and will not permit the Borrower to, (i) close any Lock-Box, any Collection Account or any Concentration Account or open any new lock-box or account to function as a Lock-Box, a Collection Account or a Concentration Account, (ii) make any change to the instructions to the Obligors that all payments with respect to the Receivables be made to a Lock-Box or Collection Account or (iii) make any change to the instructions to any Collection Account Bank as set forth in the applicable Deposit Account Notification Agreement (Government Healthcare Receivables) requiring the automatic sweep of all available funds in a Collection Account to the applicable Concentration Account at the end of each Business Day, in each case, without the prior written consent of the Administrative Agent and each Managing Agent; provided, if provisions under clauses (i), (ii) or (iii) above have been violated with respect to any Lock-Box or Collection Account relating to an individual Originator without the prior knowledge or consent of the Borrower, the Collection Agent or CHS, the Collection Agent (itself or through CHS) shall have the opportunity to cure the violation of this clause (j) within 15 days of obtaining knowledge of such breach by the Originator and, if such violation is cured within such 15 day period, the cure of such violation shall be effective to cure any breach of any covenant, representation or warranty by the Collection Agent under any Facility Document directly related to or directly arising from such violation without any further action. (k) Notice of termination of each of the agreements and other documents relating to the sale, purchase or transfer of AccessOne Program Receivables from an Originator to any Person other than the Buyer was delivered to such Person prior to the Closing Date. (l) Policies and procedures have been implemented and maintained by or on behalf of the Collection Agent that are designed to achieve compliance by the Collection Agent and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Collection Agent and its Subsidiaries and, to the knowledge of the Collection Agent, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the loan facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither the Collection Agent nor any of its Subsidiaries nor, to the knowledge of the Collection Agent, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the loan facility established hereby, is a Sanctioned Person, and the Collection Agent and the Borrower are not organized or resident in a Sanctioned Country. No Advance or use of proceeds thereof by the Borrower or the Collection Agent in any manner will violate Anti-Corruption Laws or applicable Sanctions.
Appears in 2 contracts
Samples: Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc)
Representations and Warranties of the Collection Agent. The Collection Agent hereby represents and warrants to and, where applicable, agrees with each of the Secured Parties, thatas follows:
(a1) The Collection Agent is a limited liability company corporation duly formedincorporated, validly existing and in good standing under the jurisdiction named at the beginning hereof laws of Ohio, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, unless the failure to do so could reasonably be expected to qualify would not have a Material Adverse Effectmaterial adverse effect on (i) the interests of the Investors hereunder, (ii) the collectibility of the Receivables Pool, or (iii) the ability of the Collection Agent to perform its obligations hereunder.
(b2) The execution, delivery and performance by the Collection Agent of this Agreement and any other documents to be delivered by it hereunder (i) are within the Collection Agent’s limited liability company corporate powers, (ii) have been duly authorized by all necessary limited liability company corporate action, (iii) do not contravene (1) the Collection Agent’s certificate of formation charter or limited liability company agreementby-laws, (2) any law, rule or regulation applicable to the Collection Agent, (3) any contractual restriction binding on or affecting the Collection Agent or its property (other than in an immaterial manner), or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Collection Agent or its property, and (iv) do not result in or require the creation of any Lien lien, security interest or other charge or encumbrance upon or with respect to any of its properties. This Agreement has been duly executed and delivered by the Collection Agent.
(c3) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Collection Agent of this Agreement or any other document to be delivered by it hereunder except such as (i) have been made or obtained and are in full force and effect and (ii) where the failure to make or obtain could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or the ability of the Borrower to assign or collect the Receivables hereunder (other than in an immaterial manner)hereunder.
(d4) This Agreement constitutes the legal, valid and binding obligation of the Collection Agent enforceable against the Collection Agent in accordance with its terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)terms.
(e5) The balance sheets of the Collection Agent and its Subsidiaries as at December 31, 2004, and the related statements of income and retained earnings of the Collection Agent and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Agent, fairly present the financial condition of the Collection Agent and its Subsidiaries as at such date and the results of the operations of the Collection Agent and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied, and since December 31, 2004 there has been no material adverse change in the business, operations, property or financial or other condition of the Collection Agent.
(6) There is no pending or, to the knowledge of Collection Agent’s knowledge, threatened action, investigation or proceeding affecting the Collection Agent or any of its Subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of the Collection Agent or any of its Subsidiaries or the ability of the Collection Agent to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement, except any such action, investigation or proceeding that the Collection Agent certifies to the Administrative Agent that, in the best judgment of the Collection Agent, if determined adversely, will not have a material impact on the ability of the Collection Agent to fulfill its duties hereunder, or result in a Lien on the Collateral.
(f7) The Collection Agent has not intentionally (i) misstated any calculation no office or place of Eligible Receivables or Net Receivables Balance hereunder (other than in an immaterial amount and based on good faith estimates utilized business in the calculation thereof)province of Quebec, or Canada.
(ii) misrepresented 8) Each Receivable characterized in any Receivable as qualifying Seller Report as an Eligible Receivable or intentionally as included such misrepresented Receivable in the Net Receivables Pool Balance at the time so included.
(g) Each Monthly Report (if prepared by the Collection Agent or one of its Affiliatesis, or to the extent that information contained therein is supplied by the Collection Agent or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Collection Agent to the Administrative Agent, the Managing Agents or the Lenders in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, the Managing Agents or the Lenders, as the case may be, at such time) as of the date so furnishedof such Seller Report, and no such document contains an Eligible Receivable or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, properly included in the light of the circumstances under which they were made, not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Collection Agent represents only that it acted in good faith and utilized assumptions that the Collection Agent believed to be reasonable at the time madeNet Receivables Pool Balance.
(h) The Collection Agent has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles), in each case, other than as to which a failure to do so could reasonably be expected to result in a Material Adverse Effect.
(i) All required Notices have been prepared and delivered to each of its Obligors (or, in the case of a Governmental Entity, its fiscal intermediary), and all invoices issued after the Closing Date bear only the appropriate remittance instructions for payment direction to a Lock-Box or a Collection Accounts, as the case may be. No direction is in effect directing Obligors to remit payments on Receivables other than to a Lock-Box or a Collection Account.
(j) Each of the Collection Accounts has been established in the name an Originator by a Collection Account Bank, and each Concentration Account has been established in the name of the Borrower by a Concentration Account Bank. Neither the Collection Agent nor the Borrower has established any lock-box, lock-box account or other deposit account for the receipt of Collections other than the Lock-Boxes and Collection Accounts. Each Lock-Box is linked to a Collection Account. Each Collection Account has been set up to so that all available funds automatically sweep to the applicable Concentration Account at the end of each Business Day. The Collection Agent has taken, or has caused to be taken, all actions necessary or advisable to assure that all Collections are received in the Lock-Boxes and Collection Accounts. The Collection Agent will not, and will not permit the Borrower to, (i) close any Lock-Box, any Collection Account or any Concentration Account or open any new lock-box or account to function as a Lock-Box, a Collection Account or a Concentration Account, (ii) make any change to the instructions to the Obligors that all payments with respect to the Receivables be made to a Lock-Box or Collection Account or (iii) make any change to the instructions to any Collection Account Bank as set forth in the applicable Deposit Account Notification Agreement (Government Healthcare Receivables) requiring the automatic sweep of all available funds in a Collection Account to the applicable Concentration Account at the end of each Business Day, in each case, without the prior written consent of the Administrative Agent and each Managing Agent; provided, if provisions under clauses (i), (ii) or (iii) above have been violated with respect to any Lock-Box or Collection Account relating to an individual Originator without the prior knowledge or consent of the Borrower, the Collection Agent or CHS, the Collection Agent (itself or through CHS) shall have the opportunity to cure the violation of this clause (j) within 15 days of obtaining knowledge of such breach by the Originator and, if such violation is cured within such 15 day period, the cure of such violation shall be effective to cure any breach of any covenant, representation or warranty by the Collection Agent under any Facility Document directly related to or directly arising from such violation without any further action.
(k) Notice of termination of each of the agreements and other documents relating to the sale, purchase or transfer of AccessOne Program Receivables from an Originator to any Person other than the Buyer was delivered to such Person prior to the Closing Date.
(l) Policies and procedures have been implemented and maintained by or on behalf of the Collection Agent that are designed to achieve compliance by the Collection Agent and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Collection Agent and its Subsidiaries and, to the knowledge of the Collection Agent, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the loan facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither the Collection Agent nor any of its Subsidiaries nor, to the knowledge of the Collection Agent, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the loan facility established hereby, is a Sanctioned Person, and the Collection Agent and the Borrower are not organized or resident in a Sanctioned Country. No Advance or use of proceeds thereof by the Borrower or the Collection Agent in any manner will violate Anti-Corruption Laws or applicable Sanctions.
Appears in 1 contract
Representations and Warranties of the Collection Agent. The Collection Agent represents and warrants to and, where applicable, agrees with each of the Secured Parties, that:
(a) The Collection Agent is a limited liability company duly formed, validly existing and in good standing under the jurisdiction named at the beginning hereof and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Collection Agent of this Agreement and any other documents to be delivered by it hereunder (i) are within the Collection Agent’s limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) do not contravene (1) the Collection Agent’s certificate of formation or limited liability company agreement, (2) any law, rule or regulation applicable to the Collection Agent, (3) any contractual restriction binding on or affecting the Collection Agent or its property (other than in an immaterial manner), or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Collection Agent or its property, and (iv) do not result in or require the creation of any Lien upon or with respect to any of its properties. This Agreement has been duly executed and delivered by the Collection Agent.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Collection Agent of this Agreement or any other document to be delivered by it hereunder except such as (i) have been made or obtained and are in full force and effect and (ii) where the failure to make or obtain could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or the ability of the Borrower to assign or collect the Receivables hereunder (other than in an immaterial manner).
(d) This Agreement constitutes the legal, valid and binding obligation of the Collection Agent enforceable against the Collection Agent in accordance with its terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) There is no pending or, to the Collection Agent’s knowledge, threatened action, investigation or proceeding affecting the Collection Agent or any of its Subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of the Collection Agent or any of its Subsidiaries or the ability of the Collection Agent to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement, except any such action, investigation or proceeding that the Collection Agent certifies to the Administrative Agent that, in the best judgment of the Collection Agent, if determined adversely, will not have a material impact on the ability of the Collection Agent to fulfill its duties hereunder, or result in a Lien on the Collateral.
(f) The Collection Agent has not intentionally (i) misstated any calculation of Eligible Receivables or Net Receivables Balance hereunder (other than in an immaterial amount and based on good faith estimates utilized in the calculation thereof), or (ii) misrepresented any Receivable as qualifying as an Eligible Receivable or intentionally included such misrepresented Receivable in the Net Receivables Balance at the time so included.
(g) Each Monthly Report (if prepared by the Collection Agent or one of its Affiliates, or to the extent that information contained therein is supplied by the Collection Agent or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Collection Agent to the Administrative Agent, the Managing Agents or the Lenders in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, the Managing Agents or the Lenders, as the case may be, at such time) as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Collection Agent represents only that it acted in good faith and utilized assumptions that the Collection Agent believed to be reasonable at the time made.
(h) The Collection Agent has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles), in each case, other than as to which a failure to do so could reasonably be expected to result in a Material Adverse Effect.
(i) All required Notices have been prepared and delivered to each of its Obligors (or, in the case of a Governmental Entity, its fiscal intermediary), and all invoices issued after the Closing Date bear only the appropriate remittance instructions for payment direction to a Lock-Box or a Collection Accounts, as the case may be. No direction is in effect directing Obligors to remit payments on Receivables other than to a Lock-Box or a Collection Account.
(j) Each of the Collection Accounts has been established in the name an Originator by a Collection Account Bank, and each Concentration Account has been established in the name of the Borrower by a Concentration Account Bank. Neither the Collection Agent nor the Borrower has established any lock-box, lock-box account or other deposit account for the receipt of Collections other than the Lock-Boxes and Collection Accounts. Each Lock-Box is linked to a Collection Account. Each Collection Account has been set up to so that all available funds automatically sweep to the applicable Concentration Account at the end of each Business Day. The Collection Agent has taken, or has caused to be taken, all actions necessary or advisable to assure that all Collections are received in the Lock-Boxes and Collection Accounts. The Collection Agent will not, and will not permit the Borrower to, (i) close any Lock-Box, any Collection Account or any Concentration Account or open any new lock-box or account to function as a Lock-Box, a Collection Account or a Concentration Account, (ii) make any change to the instructions to the Obligors that all payments with respect to the Receivables be made to a Lock-Box or Collection Account or (iii) make any change to the instructions to any Collection Account Bank as set forth in the applicable Deposit Account Notification Agreement (Government Healthcare Receivables) requiring the automatic sweep of all available funds in a Collection Account to the applicable Concentration Account at the end of each Business Day, in each case, without the prior written consent of the Administrative Agent and each Managing Agent; provided, if provisions under clauses (i), (ii) or (iii) above have been violated with respect to any Lock-Box or Collection Account relating to an individual Originator without the prior knowledge or consent of the Borrower, the Collection Agent or CHS, the Collection Agent (itself or through CHS) shall have the opportunity to cure the violation of this clause (j) within 15 days of obtaining knowledge of such breach by the Originator and, if such violation is cured within such 15 day period, the cure of such violation shall be effective to cure any breach of any covenant, representation or warranty by the Collection Agent under any Facility Document directly related to or directly arising from such violation without any further action.
(k) Notice of termination of each of the agreements and other documents relating to the sale, purchase or transfer of AccessOne Program Receivables from an Originator to any Person other than the Buyer was delivered to such Person prior to the Closing Date.
(l) Policies and procedures have been implemented and maintained by or on behalf of the Collection Agent that are designed to achieve compliance by the Collection Agent and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Collection Agent and its Subsidiaries and, to the knowledge of the Collection Agent, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the loan facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither the Collection Agent nor any of its Subsidiaries nor, to the knowledge of the Collection Agent, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the loan facility established hereby, is a Sanctioned Person, and the Collection Agent and the Borrower are not organized or resident in a Sanctioned Country. No Advance or use of proceeds thereof by the Borrower or the Collection Agent in any manner will violate Anti-Corruption Laws or applicable Sanctions.
(m) Neither the Collection Agent, nor CHS, nor any Originator, nor any other CHS Party is an EEA Financial Institution.
Appears in 1 contract
Representations and Warranties of the Collection Agent. The Collection Agent represents and warrants to and, where applicable, agrees with each of the Secured Parties, thatas follows:
(a) The Collection Agent is a limited liability company corporation duly formedincorporated, validly existing and in good standing under the laws of its jurisdiction named at the beginning hereof of incorporation, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, except where the failure to do so could reasonably qualify would not be expected to have a Material Adverse Effectmaterial adverse effect on the Collection Agent’s ability to perform its duties or obligations with respect to the Receivables Pool or on the Receivables Pool.
(b) The execution, delivery and performance by the Collection Agent of this Agreement and any other documents Transaction Document to be delivered by it hereunder (i) are within the Collection Agent’s limited liability company corporate powers, (ii) have been duly authorized by all necessary limited liability company action, corporate action and (iii) do not contravene (1) the Collection Agent’s certificate of formation charter or limited liability company agreementby-laws, (2) any law, rule or regulation applicable to the Collection Agent, Agent or (3) any contractual restriction binding on or affecting the Collection Agent or its property property, the violation of which couldin each case under clauses (other than in an immaterial manner), 2) or (43) where such contravention would reasonably be expected to have Material Adverse Effecta material adverse effect on the collectibilitycollectability of any order, writ, judgment, award, injunction Pool Receivable or decree binding on or affecting the performance ofby the Collection Agent or its property, and (iv) do not result in or require the creation of any Lien upon or with respect to any of its propertiesobligations hereunder. This Agreement agreement has been duly executed and delivered by the Collection Agent.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Collection Agent of this Agreement or any other document to be delivered by it hereunder except such as (i) have been made or other than those already obtained and are in full force and effect and (ii) where the failure to make or obtain could not reasonably be expected to adversely affect by the Collection Agent’s ability to perform its material obligations hereunder or the ability of the Borrower to assign or collect the Receivables hereunder (other than in an immaterial manner).
(d) This Agreement constitutes the legal, valid and binding obligation of the Collection Agent enforceable against the Collection Agent in accordance with its terms subject to bankruptcy bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors creditors’ rights generally and general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(e) There is no pending or, to the Collection Agent’s knowledge, threatened action, investigation or proceeding affecting If the Collection Agent or any of its Subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of the Collection Agent or any of its Subsidiaries or the ability of the Collection Agent to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement, except any such action, investigation or proceeding that the Collection Agent certifies to the Administrative Agent that, in the best judgment of the Collection Agent, if determined adversely, will not have a material impact on the ability of the Collection Agent to fulfill its duties hereunder, or result in a Lien on the Collateral.
(f) The Collection Agent has not intentionally (i) misstated any calculation of Eligible Receivables or Net Receivables Balance hereunder (other than in an immaterial amount and based on good faith estimates utilized in the calculation thereof), or (ii) misrepresented any Receivable as qualifying as an Eligible Receivable or intentionally included such misrepresented Receivable in the Net Receivables Balance at the time so included.
(g) Each Monthly Report (if prepared by the Collection Agent is United Rentals or one of its Affiliates, or to the extent that information contained therein is supplied by the Collection Agent or an Affiliate)each Periodic Report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Collection Agent or on behalf of United Rentals to the Administrative Agent, the Managing Agents Purchaser Agents, the Investors or the Lenders Banks in connection with this Agreement is or will be accurate correct in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, the Managing Agents Purchaser Agents, the Investors or the LendersBanks, as the case may be, at such timetime promptly upon discovery of any clerical error or omission within the same calendar month) as of the date so furnished, and and, as of such date, no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided that Facsimile No.: (000) 000-0000 If to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Collection Agent represents only that it acted in good faith and utilized assumptions that the Collection Agent believed to be reasonable at the time made.
(h) The Collection Agent has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles), in each case, other than as to which a failure to do so could reasonably be expected to result in a Material Adverse Effect.
(i) All required Notices have been prepared and delivered to each of its Obligors (or, in the case of a Governmental Entity, its fiscal intermediary), and all invoices issued after the Closing Date bear only the appropriate remittance instructions for payment direction to a Lock-Box or a Collection Accounts, as the case may be. No direction is in effect directing Obligors to remit payments on Receivables other than to a Lock-Box or a Collection Account.
(j) Each of the Collection Accounts has been established in the name an Originator by a Collection Account Bank, and each Concentration Account has been established in the name of the Borrower by a Concentration Account Bank. Neither the Collection Agent nor the Borrower has established any lock-box, lock-box account or other deposit account for the receipt of Collections other than the Lock-Boxes and Collection Accounts. Each Lock-Box is linked to a Collection Account. Each Collection Account has been set up to so that all available funds automatically sweep to the applicable Concentration Account at the end of each Business Day. The Collection Agent has taken, or has caused to be taken, all actions necessary or advisable to assure that all Collections are received in the Lock-Boxes and Collection Accounts. The Collection Agent will not, and will not permit the Borrower to, (i) close any Lock-Box, any Collection Account or any Concentration Account or open any new lock-box or account to function as a Lock-Box, a Collection Account or a Concentration Account, (ii) make any change to the instructions to the Obligors that all payments with respect to the Receivables be made to a Lock-Box or Collection Account or (iii) make any change to the instructions to any Collection Account Bank as set forth in the applicable Deposit Account Notification Agreement (Government Healthcare Receivables) requiring the automatic sweep of all available funds in a Collection Account to the applicable Concentration Account at the end of each Business Day, in each case, without the prior written consent of the Administrative Agent and each Managing Agent; provided, if provisions under clauses (i), (ii) or (iii) above have been violated with respect to any Lock-Box or Collection Account relating to an individual Originator without the prior knowledge or consent of the Borrower, the Collection Agent or CHS, the Collection Agent (itself or through CHS) shall have the opportunity to cure the violation of this clause (j) within 15 days of obtaining knowledge of such breach by the Originator and, if such violation is cured within such 15 day period, the cure of such violation shall be effective to cure any breach of any covenant, representation or warranty by the Collection Agent under any Facility Document directly related to or directly arising from such violation without any further action.
(k) Notice of termination of each of the agreements and other documents relating to the sale, purchase or transfer of AccessOne Program Receivables from an Originator to any Person other than the Buyer was delivered to such Person prior to the Closing Date.
(l) Policies and procedures have been implemented and maintained by or on behalf of the Collection Agent that are designed to achieve compliance by the Collection Agent and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Collection Agent and its Subsidiaries and, to the knowledge of the Collection Agent: UNITED RENTALS, their respective officersINC. 000 Xxxxx Xxxxxxxx Xxxxx Xxxxx 000 Xxxxxxxx, employees, directors and agents acting in any capacity in connection with XX 00000 Attention: Treasurer or directly benefitting from the loan facility established hereby, are in compliance with AntiAssistant Treasurer Tel. No.: (000) 000-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither the Collection Agent nor any of its Subsidiaries nor, 0000 Facsimile No.: (000) 000-0000 If to the knowledge of the Collection Agent, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the loan facility established hereby, is a Sanctioned Person, and the Collection Liberty Purchaser Agent and the Borrower are not organized or resident in a Sanctioned Country. No Advance or use of proceeds thereof by the Borrower or the Collection Agent in any manner will violate AntiAdministrative Agent: THE BANK OF NOVA SCOTIA 000 Xxxxx Xxxxxx, 23rd Floor New York, NY 00000 Attention: Xxxxx Xxxxxxxx Tel. No.: (000) 000-Corruption Laws or applicable Sanctions0000 Facsimile No.: (000) 000-0000 If to the PNC Purchaser Agent: PNC BANK, NATIONAL ASSOCIATION Three PNC Plaza 000 Xxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Attention: PNC Conduit Group Facsimile No.: (000) 000-0000 If to the Gotham Purchaser Agent: THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD. 00 Xxxxxxxx Xxxxx, Xxxxx III 0xx Xxxxx Xxxxxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxx Facsimile No.: (000) 000-0000 Email: xxxxxxxxxxxxxx_xxxxxxxxx@xx.xxxx.xx With a copy to: THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD. 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Attention: The Securitization Group Facsimile No.: (000) 000-0000 Emails: xxxxxxxxxxxxxx_xxxxxxxxx@xx.xxxx.xx xxxxx@xx.xxxx.xx If to the ST Purchaser Agent: SUNTRUST BANK 0000 Xxxxxxxxx Xxxx, XX 00xx Xxxxx Xxxx Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxx Xxxxx Tel. No.: (000) 000-0000 Facsimile No.: (000) 000-0000 If to the Fairway Purchaser Agent: BANK OF MONTREAL 000 X. XxXxxxx Street 25th Floor West Chicago, Illinois 00000 Attention: Xxxxx Xxxxx Tel. No.: (000) 000-0000 Facsimile No.: (000) 000-0000 Emails: xxxxx.xxxxx@xxx.xxx xxxxxxxxxxx@xxx.xxx xxxxxxxxxxx.xxxxx@xxx.xxx Xxx.xxxxxxxxxxxxxx@xxx.xxx If to the TD Purchaser Agent: THE TORONTO-DOMINION BANK Asset Securitization Group 000 Xxx Xxxxxx, XX Tower 7th floor Toronto, Xxxxxxx X0X0X0 Attention: Xxxxx Xxxxx Tel. No.: (000) 000-0000 Facsimile No.: (000) 000-0000 Emails: Xxxxx.Xxxxx@xxxxxxxxxxxx.xxx Xxxxxx.xxxx@xxxxxxxxxxxx.xxx PNC BANK, NATIONAL ASSOCIATION Three PNC Plaza 000 Xxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Attention: Xxxxxxx Xxxxxx and Xxxx Xxxxxxx Tel. No.: (000) 000-0000 and (000) 000-0000 Facsimile No.: (000) 000-0000 Emails: xxxxx.xxxxxxx@xxx.xxx xxxxxxxxxxxxxxx@xxx.xxx THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD. 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxxx / Xxxxxxxxxxx Xxxx/ Xxxxx Xxxxxx Tel. No.: (000) 000-0000 / (000) 000-0000 / (000) 000-0000 Facsimile No.: (000) 000-0000 Emails: xxxxxxxxxxxxxx_xxxxxxxxx@xx.xxxx.xx xxxxx@xx.xxxx.xx
Appears in 1 contract
Representations and Warranties of the Collection Agent. The Collection Agent hereby represents and warrants to and, where applicable, agrees with each of the Secured Parties, thatas follows:
(a) The Collection Agent is a limited liability company corporation duly formedincorporated, validly existing and in good standing under the jurisdiction named at laws of the beginning hereof State of Pennsylvania, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, except where the failure to do be so could qualified would not reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the business, operations, property or financial or other condition of the Collection Agent.
(b) The execution, delivery and performance by the Collection Agent of this Agreement and any other documents to be delivered by it hereunder (i) are within the Collection Agent’s limited liability company 's corporate powers, (ii) have been duly authorized by all necessary limited liability company corporate action, (iii) do not contravene (1) the Collection Agent’s certificate of formation 's charter or limited liability company agreementby-laws, (2) any law, rule or regulation applicable to the Collection Agent, (3) any material contractual restriction binding on or affecting the Collection Agent or its property (other than in an immaterial manner)property, including, without limitation, the Credit Agreement and the documents related thereto or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Collection Agent or its property, and (iv) do not result in or require the creation of any Lien lien, security interest or other charge or encumbrance upon or with respect to any of its propertiesproperties pursuant to any material agreement. This Agreement has been duly executed and delivered by the Collection Agent.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Collection Agent of this Agreement or any other document to be delivered by it hereunder except such as (i) have been made or obtained and are in full force and effect and (ii) where the failure to make or obtain could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or the ability of the Borrower to assign or collect the Receivables hereunder (other than in an immaterial manner)hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Collection Agent enforceable against the Collection Agent in accordance with its terms except that such enforceability may be subject to bankruptcy bankruptcy, insolvency, reorganization, moratorium (whether general or specific) and other similar laws now or hereafter in effect affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)rights generally.
(e) The consolidated balance sheet of Dal-Tile International and its consolidated Subsidiaries as at December 29, 2000, and the related consolidated statements of income and retained earnings of Dal-Tile International and its consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Agent, fairly present, in all material respects, the financial condition of Dal-Tile International and its consolidated Subsidiaries as at such date and the results of the operations of Dal-Tile International and its consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied, and since December 29, 2000 there has been no material adverse change in the business, financial condition or operations of Dal-Tile International and its consolidated Subsidiaries taken as a whole that could reasonably be expected to adversely affect the value or collectibility of the Receivable Interests or the Receivables Pool or the ability of the Seller, the Originator or the Collection Agent to collect Pool Receivables or otherwise perform its obligations under this Agreement or the other Transaction Documents.
(f) There is no pending or, to the Collection Agent’s knowledge, or threatened action, investigation action or proceeding affecting the Collection Agent or any of its Subsidiaries before any court, governmental agency or arbitrator which may reasonably be expected to materially adversely affect the financial condition or operations of the Collection Agent or any of and its consolidated Subsidiaries taken as a whole or the ability of the Collection Agent to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement, except any such action, investigation or proceeding that the Collection Agent certifies to the Administrative Agent that, in the best judgment of the Collection Agent, if determined adversely, will not have a material impact on the ability of the Collection Agent to fulfill its duties hereunder, or result in a Lien on the Collateral.
(f) The Collection Agent has not intentionally (i) misstated any calculation of Eligible Receivables or Net Receivables Balance hereunder (other than in an immaterial amount and based on good faith estimates utilized in the calculation thereof), or (ii) misrepresented any Receivable as qualifying as an Eligible Receivable or intentionally included such misrepresented Receivable in the Net Receivables Balance at the time so included.
(g) Each Monthly Report On the date of each purchase and reinvestment (if prepared by the Collection Agent or one of its Affiliates, or to the extent that information contained therein is supplied by the Collection Agent or an Affiliateand after giving effect thereto), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Collection Agent to the Administrative Agent, the Managing Agents or the Lenders in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, the Managing Agents or the Lenders, as the case may be, at such time) as sum of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, Receivable Interests is not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Collection Agent represents only that it acted in good faith and utilized assumptions that the Collection Agent believed to be reasonable at the time madegreater than 100%.
(h) The Collection Agent has a system in place which allows it to determine (iand adjust) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment Outstanding Balance of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested each particular Receivable in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles), in each case, other than as to of which a failure to do so could reasonably be expected to result in a Material Adverse Effect.
(i) All required Notices have been prepared and delivered to each of its Obligors (or, in the case of a Governmental Entity, its fiscal intermediary), and all invoices credit memo issued after the Closing Date bear only the appropriate remittance instructions for payment direction to a Lock-Box or a Collection Accounts, as the case may be. No direction is in effect directing Obligors to remit payments on Receivables other than to a Lock-Box or a Collection Account.
(j) Each of the Collection Accounts has been established in the name an Originator by a Collection Account Bank, and each Concentration Account has been established in the name of the Borrower by a Concentration Account Bank. Neither the Collection Agent nor the Borrower has established any lock-box, lock-box account or other deposit account for the receipt of Collections other than the Lock-Boxes and Collection Accounts. Each Lock-Box is linked to a Collection Account. Each Collection Account has been set up to so that all available funds automatically sweep to the applicable Concentration Account at the end of each Business Day. The Collection Agent has taken, or has caused to be taken, all actions necessary or advisable to assure that all Collections are received in the Lock-Boxes and Collection Accounts. The Collection Agent will not, and will not permit the Borrower to, (i) close any Lock-Box, any Collection Account or any Concentration Account or open any new lock-box or account to function as a Lock-Box, a Collection Account or a Concentration Account, (ii) make any change to the instructions to the Obligors that all payments with respect to the Receivables be made to a Lock-Box or Collection Account or (iii) make any change to the instructions to any Collection Account Bank as set forth in the applicable Deposit Account Notification Agreement (Government Healthcare Receivables) requiring the automatic sweep of all available funds in a Collection Account to the applicable Concentration Account at the end of each Business Day, in each case, without the prior written consent of the Administrative Agent and each Managing Agent; provided, if provisions under clauses (i), (ii) or (iii) above have been violated with respect to any Lock-Box or Collection Account relating to an individual Originator without the prior knowledge or consent of the Borrower, the Collection Agent or CHS, the Collection Agent (itself or through CHS) shall have the opportunity to cure the violation of this clause (j) within 15 days of obtaining knowledge of such breach by the Originator and, if such violation is cured within such 15 day period, the cure of such violation shall be effective to cure any breach of any covenant, representation or warranty by the Collection Agent under any Facility Document directly related to or directly arising from such violation without any further action.
(k) Notice of termination of each of the agreements and other documents relating to the sale, purchase or transfer of AccessOne Program Receivables from an Originator to any Person other than the Buyer was delivered to such Person prior to the Closing Date.
(l) Policies and procedures have been implemented and maintained by or on behalf of the Collection Agent that are designed to achieve compliance by the Collection Agent and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Collection Agent and its Subsidiaries and, to the knowledge of the Collection Agent, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the loan facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither the Collection Agent nor any of its Subsidiaries nor, to the knowledge of the Collection Agent, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the loan facility established hereby, is a Sanctioned Person, and the Collection Agent and the Borrower are not organized or resident in a Sanctioned Country. No Advance or use of proceeds thereof by the Borrower or the Collection Agent in any manner will violate Anti-Corruption Laws or applicable SanctionsSeller is outstanding.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Dal Tile International Inc)
Representations and Warranties of the Collection Agent. The Collection Agent hereby represents and warrants to and, where applicable, agrees with each of the Secured Parties, thatas follows:
(a) The Collection Agent is a limited liability company corporation duly formedincorporated, validly existing and in good standing under the jurisdiction named at the beginning hereof laws of Virginia, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, unless the failure to do so could reasonably be expected to qualify would not have a Material Adverse Effectmaterial adverse effect on (i) the interests of the Investors and the Banks hereunder, (ii) the collectibility of the Receivables Pool, or (iii) the ability of Collection Agent to perform its obligations hereunder.
(b) The execution, delivery and performance by the Collection Agent of this Agreement and any other documents to be delivered by it hereunder (i) are within the Collection Agent’s limited liability company corporate powers, (ii) have been duly authorized by all necessary limited liability company corporate action, (iii) do not contravene (1) the Collection Agent’s certificate of formation charter or limited liability company agreementby-laws, (2) any law, rule or regulation applicable to the Collection Agent, (3) any material contractual restriction binding on or affecting the Collection Agent or its property (other than in an immaterial manner), or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Collection Agent or its property, and (iv) do not result in or require the creation of any Lien lien, security interest or other charge or encumbrance upon or with respect to any of its properties. This Agreement has been duly executed and delivered by the Collection Agent.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Collection Agent of this Agreement or any other document to be delivered by it hereunder except such as (i) have been made or obtained and are in full force and effect and (ii) where the failure to make or obtain could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or the ability of the Borrower to assign or collect the Receivables hereunder (other than in an immaterial manner)hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Collection Agent enforceable against the Collection Agent in accordance with its terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) There is no pending or, to the Collection Agent’s knowledge, threatened action, investigation or proceeding affecting the Collection Agent or any of its Subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of the Collection Agent or any of its Subsidiaries or the ability of the Collection Agent to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement, except any such action, investigation or proceeding that the Collection Agent certifies to the Administrative Agent that, in the best judgment of the Collection Agent, if determined adversely, will not have a material impact on the ability of the Collection Agent to fulfill its duties hereunder, or result in a Lien on the Collateral.
(f) The Collection Agent has not intentionally (i) misstated any calculation of Eligible Receivables or Net Receivables Balance hereunder (other than in an immaterial amount and based on good faith estimates utilized in the calculation thereof), or (ii) misrepresented any Receivable as qualifying as an Eligible Receivable or intentionally included such misrepresented Receivable in the Net Receivables Balance at the time so included.
(g) Each Monthly Report (if prepared by the Collection Agent or one of its Affiliates, or to the extent that information contained therein is supplied by the Collection Agent or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Collection Agent to the Administrative Agent, the Managing Agents or the Lenders in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, the Managing Agents or the Lenders, as the case may be, at such time) as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Collection Agent represents only that it acted in good faith and utilized assumptions that the Collection Agent believed to be reasonable at the time made.
(h) The Collection Agent has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles), in each case, other than as to which a failure to do so could reasonably be expected to result in a Material Adverse Effect.
(i) All required Notices have been prepared and delivered to each of its Obligors (or, in the case of a Governmental Entity, its fiscal intermediary), and all invoices issued after the Closing Date bear only the appropriate remittance instructions for payment direction to a Lock-Box or a Collection Accounts, as the case may be. No direction is in effect directing Obligors to remit payments on Receivables other than to a Lock-Box or a Collection Account.
(j) Each of the Collection Accounts has been established in the name an Originator by a Collection Account Bank, and each Concentration Account has been established in the name of the Borrower by a Concentration Account Bank. Neither the Collection Agent nor the Borrower has established any lock-box, lock-box account or other deposit account for the receipt of Collections other than the Lock-Boxes and Collection Accounts. Each Lock-Box is linked to a Collection Account. Each Collection Account has been set up to so that all available funds automatically sweep to the applicable Concentration Account at the end of each Business Day. The Collection Agent has taken, or has caused to be taken, all actions necessary or advisable to assure that all Collections are received in the Lock-Boxes and Collection Accounts. The Collection Agent will not, and will not permit the Borrower to, (i) close any Lock-Box, any Collection Account or any Concentration Account or open any new lock-box or account to function as a Lock-Box, a Collection Account or a Concentration Account, (ii) make any change to the instructions to the Obligors that all payments with respect to the Receivables be made to a Lock-Box or Collection Account or (iii) make any change to the instructions to any Collection Account Bank as set forth in the applicable Deposit Account Notification Agreement (Government Healthcare Receivables) requiring the automatic sweep of all available funds in a Collection Account to the applicable Concentration Account at the end of each Business Day, in each case, without the prior written consent of the Administrative Agent and each Managing Agent; provided, if provisions under clauses (i), (ii) or (iii) above have been violated with respect to any Lock-Box or Collection Account relating to an individual Originator without the prior knowledge or consent of the Borrower, the Collection Agent or CHS, the Collection Agent (itself or through CHS) shall have the opportunity to cure the violation of this clause (j) within 15 days of obtaining knowledge of such breach by the Originator and, if such violation is cured within such 15 day period, the cure of such violation shall be effective to cure any breach of any covenant, representation or warranty by the Collection Agent under any Facility Document directly related to or directly arising from such violation without any further action.
(k) Notice of termination of each of the agreements and other documents relating to the sale, purchase or transfer of AccessOne Program Receivables from an Originator to any Person other than the Buyer was delivered to such Person prior to the Closing Date.
(l) Policies and procedures have been implemented and maintained by or on behalf of the Collection Agent that are designed to achieve compliance by the Collection Agent and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Collection Agent and its Subsidiaries and, to the knowledge of the Collection Agent, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the loan facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither the Collection Agent nor any of its Subsidiaries nor, to the knowledge of the Collection Agent, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the loan facility established hereby, is a Sanctioned Person, and the Collection Agent and the Borrower are not organized or resident in a Sanctioned Country. No Advance or use of proceeds thereof by the Borrower or the Collection Agent in any manner will violate Anti-Corruption Laws or applicable Sanctions.
Appears in 1 contract
Representations and Warranties of the Collection Agent. The Collection Agent hereby represents and warrants to andas follows, where applicable, agrees with which representations and warranties shall be deemed repeated on each of day during the Secured Parties, that:Revolving Period: 56
(a) The Collection Agent is a limited liability company corporation duly formedincorporated, validly existing and in good standing under the jurisdiction named at the beginning hereof laws of Delaware, and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, except where the failure to do so could not reasonably be expected to have result in a Material Adverse Effect.
(b) The execution, delivery and performance by the Collection Agent of this Agreement and any other documents to be delivered by it hereunder (i) are within the Collection Agent’s limited liability company 's corporate powers, (ii) have been duly authorized by all necessary limited liability company corporate action, (iii) do not contravene (1) the Collection Agent’s certificate of formation 's charter or limited liability company agreementby-laws, (2) any law, rule or regulation applicable to the Collection Agent, (3) any contractual restriction binding on or affecting the Collection Agent or its property (other than in an immaterial manner), or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Collection Agent or its property, and (iv) do not result in or require the creation of any Lien lien, security interest or other charge or encumbrance upon or with respect to any of its properties. This Agreement has been duly executed and delivered by the Collection Agent.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Collection Agent of this Agreement or any other document to be delivered by it hereunder except such as (i) have been made or obtained and are in full force and effect and (ii) where the failure to make or obtain could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or the ability of the Borrower to assign or collect the Receivables hereunder (other than in an immaterial manner)hereunder.
(d) This Agreement constitutes the legal, valid and binding obligation of the Collection Agent enforceable against the Collection Agent in accordance with its terms terms, subject to bankruptcy and applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally and general equitable principles of equity (regardless of whether enforcement is sought considered in a proceeding at law or in equity or at lawequity).
(e) There Since February 28, 2004 there has been no material adverse change in the business, operations, property, prospects or financial or other condition of the Collection Agent.
(f) Except as set forth in Schedule V, there is no pending or, to the Collection Agent’s knowledge, or threatened action, investigation or proceeding affecting the Collection Agent or any of its Subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of the Collection Agent or any of its Subsidiaries or the ability of the Collection Agent to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement, except any such action, investigation or proceeding that the Collection Agent certifies to the Administrative Agent that, in the best judgment of the Collection Agent, if determined adversely, will not have a material impact on the ability of the Collection Agent to fulfill its duties hereunder, or result in a Lien on the Collateral.
(f) The Collection Agent has not intentionally (i) misstated any calculation of Eligible Receivables or Net Receivables Balance hereunder (other than in an immaterial amount and based on good faith estimates utilized in the calculation thereof), or (ii) misrepresented any Receivable as qualifying as an Eligible Receivable or intentionally included such misrepresented Receivable in the Net Receivables Balance at the time so included.
(g) Each Monthly Report (if prepared by the Collection Agent or one of its Affiliates, or to the extent that information contained therein is supplied by the Collection Agent or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Collection Agent to the Administrative Agent, the Managing Agents or the Lenders in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, the Managing Agents or the Lenders, as the case may be, at such time) as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Collection Agent represents only that it acted in good faith and utilized assumptions that the Collection Agent believed to be reasonable at the time made.
(h) The Collection Agent has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles), in each case, other than as to which a failure to do so could reasonably be expected to result in a Material Adverse Effect.
(ig) All required Notices have been prepared On each day during the Revolving Period (and delivered after giving effect to each any Advance to be made on such day), the Facility Principal (less the amount of its Obligors Cure Funds then in the Cure Account) is not greater than the Borrowing Base. Each Transferred Asset characterized in any Borrower Report as an Eligible Receivable or Eligible Participation Interest, or as included in the Net Receivables Pool Balance is, as of the date of such Borrower Report (or, if applicable, as of a date certain specified in such information), an Eligible Receivable or Eligible Participation Interest, or properly included in the case of a Governmental Entity, its fiscal intermediary), and all invoices issued after the Closing Date bear only the appropriate remittance instructions for payment direction to a Lock-Box or a Collection Accounts, as the case may be. No direction is in effect directing Obligors to remit payments on Net Receivables other than to a Lock-Box or a Collection AccountPool Balance.
(j) Each of the Collection Accounts has been established in the name an Originator by a Collection Account Bank, and each Concentration Account has been established in the name of the Borrower by a Concentration Account Bank. Neither the Collection Agent nor the Borrower has established any lock-box, lock-box account or other deposit account for the receipt of Collections other than the Lock-Boxes and Collection Accounts. Each Lock-Box is linked to a Collection Account. Each Collection Account has been set up to so that all available funds automatically sweep to the applicable Concentration Account at the end of each Business Day. The Collection Agent has taken, or has caused to be taken, all actions necessary or advisable to assure that all Collections are received in the Lock-Boxes and Collection Accounts. The Collection Agent will not, and will not permit the Borrower to, (i) close any Lock-Box, any Collection Account or any Concentration Account or open any new lock-box or account to function as a Lock-Box, a Collection Account or a Concentration Account, (ii) make any change to the instructions to the Obligors that all payments with respect to the Receivables be made to a Lock-Box or Collection Account or (iii) make any change to the instructions to any Collection Account Bank as set forth in the applicable Deposit Account Notification Agreement (Government Healthcare Receivables) requiring the automatic sweep of all available funds in a Collection Account to the applicable Concentration Account at the end of each Business Day, in each case, without the prior written consent of the Administrative Agent and each Managing Agent; provided, if provisions under clauses (i), (ii) or (iii) above have been violated with respect to any Lock-Box or Collection Account relating to an individual Originator without the prior knowledge or consent of the Borrower, the Collection Agent or CHS, the Collection Agent (itself or through CHS) shall have the opportunity to cure the violation of this clause (j) within 15 days of obtaining knowledge of such breach by the Originator and, if such violation is cured within such 15 day period, the cure of such violation shall be effective to cure any breach of any covenant, representation or warranty by the Collection Agent under any Facility Document directly related to or directly arising from such violation without any further action.
(k) Notice of termination of each of the agreements and other documents relating to the sale, purchase or transfer of AccessOne Program Receivables from an Originator to any Person other than the Buyer was delivered to such Person prior to the Closing Date.
(l) Policies and procedures have been implemented and maintained by or on behalf of the Collection Agent that are designed to achieve compliance by the Collection Agent and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Collection Agent and its Subsidiaries and, to the knowledge of the Collection Agent, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the loan facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither the Collection Agent nor any of its Subsidiaries nor, to the knowledge of the Collection Agent, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the loan facility established hereby, is a Sanctioned Person, and the Collection Agent and the Borrower are not organized or resident in a Sanctioned Country. No Advance or use of proceeds thereof by the Borrower or the Collection Agent in any manner will violate Anti-Corruption Laws or applicable Sanctions.
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