Initial Advance. The obligations of the Lenders to fund their respective Funding Shares of the initial Advance under this Agreement are subject to the Companies' fulfillment of the following conditions precedent: (a) The Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent in its sole discretion: (1) This Agreement duly executed by all parties; (2) The Senior Credit Notes, each duly executed by the Companies; (3) The Guaranty, duly executed by the Parent; (4) the 12/00 Amendment to Class R Security Agreement of even date herewith; (5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located); (6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent; (7) The Custody Agreement duly executed by the Companies and Chase as Custodian; (8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary; (9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G); (10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively; (11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent); (12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and (13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent. (b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (American Business Financial Services Inc /De/)
Initial Advance. The obligations of the Lenders As conditions precedent to fund their respective Funding Shares of Lender’s obligation to make the initial Advance under this Agreement are subject to the Companies' fulfillment of the following conditions precedenthereunder:
(a) The Agent Borrower shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the followingdelivered to Lender, all of which must be satisfactory in form and content substance satisfactory to the Agent in its sole discretionLender:
(1i) This this Agreement duly executed signed by all partiesBorrower;
(2ii) The Senior Credit Notes, each duly executed the Commitment Letter signed by the CompaniesBorrower;
(3iii) The Guaranty, duly executed the Note signed by the ParentBorrower;
(4iv) a Guarantee signed by each Guarantor, if stipulated in the 12/00 Amendment to Class R Security Agreement of even date herewithCommitment Letter;
(5v) UCC financing statements for the Collateral covered a Power of Attorney signed by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located)Borrower;
(6vi) a UCC search report certified copy of Borrower’s articles or certificate of incorporation and bylaws (or corresponding organizational documents if Borrower is not a UCC filings search corporation) and a certificate of good standing issued by the appropriate official in Borrower’s jurisdiction of organization, dated no less recently than one (1) month prior to the date hereof;
(vii) a certificate of Borrower’s corporate secretary, substantially in the Office form of Exhibit H hereto, dated as of the Secretary of State Effective Date, as to the incumbency and authenticity of the State of Pennsylvania (the State in which the chief executive office of each signatures of the Companies is locatedofficers of Borrower executing the Principal Agreements and the resolutions of the board of directors of Borrower, substantially in the form of Exhibit I hereto;
(viii) independently audited financial statements of Borrower (and its Subsidiaries, on a consolidated basis) for each of the Companiestwo (2) fiscal years most recently ended (if available), ABFS 1998-2 containing a balance sheet and the Parentrelated statements of income, stockholders’ equity and cash flows, all prepared in accordance with GAAP, applied on a basis consistent with prior periods, and otherwise acceptable to Lender;
(7ix) The Custody Agreement duly executed by if more than six (6) months has passed since the Companies and Chase as Custodianclose of the most recently ended fiscal year, interim financial statements of Borrower covering the period from the first day of the current fiscal year to the last day of the most recently ended month;
(8) Copies x) financial statements of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified Guarantors, signed by such Company's them, dated no less recently than three (or the Parent's, as the case may be3) secretary or assistant secretary;
(9) A favorable written opinion of counsel months prior to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10xi) A copy copies of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an Borrower’s errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, policy or certificates in lieu of insurance for such policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to Lender, showing compliance by Borrower with Section 9.10 below;
(xii) a subordination agreement, in form and substance satisfactory to Lender in its sole discretion, executed by each Guarantor and each Affiliate of Borrower that, as of the AgentEffective Date, is a creditor of Borrower;
(xiii) an Acknowledgement of Confidentiality of Password Agreement;
(xiv) the initial Commitment Fee.
(xv) letter agreement dated June 26, 2003 regarding Borrower’s use of Countrywide Securities Corporation as lead underwriter.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, Borrower shall have caused such Debt -- excluding only executed and filed with the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debtappropriate governmental authorities, as defined in this Agreementdetermined by Lender, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form state of Exhibit C Borrower’s principal place of business and taking all in the state of Borrower’s organization and in such other stepsjurisdictions as may be required by Lender, if any, required Uniform Commercial Code Financial Statements (UCC-1) and/or such other instruments as may be necessary to cause such Debt to be Subordinated Debt, as so definedperfect the security interest of Lender in the Collateral, and the corporate secretary Borrower has provided satisfactory evidence of the relevant Company or the Parent such filing to Lender.
(as the case may bec) Lender shall have certified each such Subordination Agreement executed to satisfy the requirements satisfactorily completed its due diligence review of this Subsection to be trueBorrower’s operations, complete business, financial condition and in full force underwriting and effect as origination of the date of the AdvanceMortgage Loans.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Aames Financial Corp/De)
Initial Advance. The obligations of the Lenders Lenders’ obligation to fund their respective Funding Shares of the initial Advance under this Agreement are make Warehousing Advances is subject to the Companies' fulfillment satisfaction, in the sole discretion of Credit Agent, of the following conditions precedent:
(a) The Credit Agent shall have received (or be satisfied that it will must receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Credit Agent, in its sole discretion:
(1) This The Notes and this Agreement duly executed by all parties;Borrowers.
(2) The Senior Lennar Undertaking, on the form prescribed by Credit NotesAgent, each duly executed by the Companies;Lennar.
(3) The Guaranty, duly executed by A certificate of UAMCLLC stating that there has been no change in either UAMCLLC ‘s articles of organization or operating agreement since those delivered in connection with the Parent;Existing Agreement.
(4) Certificates of good standing dated within 60 days of the 12/00 Amendment to Class R Security Agreement date of even date herewith;this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that UAMCLLC is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(5) UCC financing statements for A resolution, consent or approval of all of the Collateral covered members of UAMCLLC authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMCLLC under this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);.
(6) a UCC search report of a UCC filings search in A certificate as to the Office incumbency and authenticity of the Secretary of State signatures of the State managers of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 UAMCLLC executing this Agreement and the Parent;other Loan Documents.
(7) The Custody Assumed Name Certificates dated within 60 days of the date of this Agreement duly executed for any assumed name used by UAMCLLC in the Companies and Chase as Custodian;conduct of its business.
(8) Copies A certificate of each Company's EHMI stating that there has been no change in either EHMI’s articles of incorporation or bylaws since those delivered in connection with the Existing Agreement.
(9) Certificates of good standing dated within 60 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that EHMI is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(10) A resolution of the board of directors of EHMI authorizing the execution, delivery and performance of this Agreement and the Parent's other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by EHMI under this Agreement.
(11) A certificate as to the incumbency and authenticity of the signatures of the officers of EHMI executing this Agreement and the other Loan Documents.
(12) Assumed Name Certificates dated within 60 days of the date of this Agreement for any assumed name used by EHMI in the conduct of its business.
(13) A certificate of EHMCA stating that there has been no change in either EHMCA’s articles of incorporation or bylaws since those delivered in connection with the Existing Agreement.
(14) Certificates of good standing dated within 60 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that EHMCA is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(15) A resolution of the board of directors of EHMCA authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by EHMCA under this Agreement.
(16) A certificate as to the incumbency and authenticity of the signatures of the officers of EHMCA executing this Agreement and the other Loan Documents.
(17) Assumed Name Certificates dated within 60 days of the date of this Agreement for any assumed name used by EHMCA in the conduct of its business.
(18) A certificate of UAMCC stating that there has been no change in either UAMCC’s articles of incorporation or bylaws since those delivered in connection with the Existing Agreement.
(19) Certificates of good standing dated within 60 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that UAMCC is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(20) A resolution of the board of directors of UAMCC authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMCC under this Agreement.
(21) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMCC executing this Agreement and the other Loan Documents.
(22) Assumed Name Certificates dated within 60 days of the date of this Agreement for any assumed name used by UAMCC in the conduct of its business.
(23) A certificate of UAMC Asset stating that there has been no change in either UAMC Asset articles of incorporation or bylaws since those delivered in connection with the Existing Agreement.
(24) Certificates of good standing dated within 60 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that UAMC Asset is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(25) A resolution of the board of directors of UAMC Asset authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMC Asset under this Agreement.
(26) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMC Asset executing this Agreement and the other Loan Documents.
(27) Assumed Name Certificates dated within 60 days of the date of this Agreement for any assumed name used by UAMC Asset in the conduct of its business.
(28) A certificate of UAMCP stating that there has been no change in either UAMCP’s articles of incorporation or bylaws since those delivered in connection with the Existing Agreement.
(29) Certificates of good standing dated within 60 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that UAMCP is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(30) A resolution of the board of directors of UAMCP authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMCP under this Agreement.
(31) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMCP executing this Agreement and the other Loan Documents.
(32) Assumed Name Certificates dated within 60 days of the date of this Agreement for any assumed name used by UAMCP in the conduct of its business.
(33) A certificate of EHMLLC stating that there has been no change in either EHMLLC’s articles of organization or operating agreement since those delivered in connection with the Existing Agreement.
(34) Certificates of good standing dated within 60 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that EHMLLC is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(35) A resolution, consent or approval of all of the members of EHMLLC authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by EHMLLC under this Agreement.
(36) A certificate as to the incumbency and authenticity of the signatures of the managers of EHMLLC executing this Agreement and the other Loan Documents.
(37) Assumed Name Certificates dated within 60 days of the date of this Agreement for any assumed name used by EHMLLC in the conduct of its business.
(38) A certificate of Lennar stating that there has been no change in either Lennar’s articles or certificate of incorporation certified by or bylaws since those delivered in connection with the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;Existing Agreement,
(939) A favorable written opinion Certificates of counsel to the Companies and the Parent good standing dated on or before within 60 days of the date of this Agreement, together with a certification from the initial AdvanceFranchise Tax Board or other state tax authority stating that Lennar is in good standing with the Franchise Tax Board or such state tax authority, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);if applicable.
(1040) A copy resolution of the resolutions board of each Company's and the Parent's boards directors of directorsLennar, certified as of the date of the initial Advance Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementLennar Undertaking, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers agreements, instruments or documents to be delivered by the Companies pursuant to Lennar under this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(1141) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company Lennar executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance Lennar Undertaking and all other Facilities Papers executed agreements, instruments or documents to be executed by or on behalf of the Company and delivered under this Agreement (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be Lender being entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new incumbency certificate has been furnished to the AgentLender);.
(1242) An Officer's Certificate for each Company A favorable written opinion of counsel to Borrowers and Lennar (or of separate counsel at the option of Borrowers and Lennar), addressed to Lenders and dated as of the date of this Agreement, covering such matters as Lenders may reasonably request.
(43) Uniform Commercial Code, tax lien and judgment searches of the initial Advance and certifying that, after giving effect to appropriate public records for each Borrower that Advance, no Default do not disclose the existence of any prior Lien on the Collateral other than in favor of Credit Agent or Event of Default will exist as permitted under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; andAgreement.
(1344) Copies of an the certificates, documents or other written instruments that evidence Borrowers’ eligibility described in Section 9.1, all in form and substance satisfactory to Credit Agent.
(45) Copies of each Borrowers’ errors and omissions insurance policy or mortgage impairment insurance policy policy, and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage showing compliance by each Borrower as is customary for members of the Companies' industrydate of this Agreement with the provisions of Section 7.9.
(46) An agreement among each Borrower that is selling Loans to ▇▇▇▇▇▇ Mae, Credit Agent and ▇▇▇▇▇▇ ▇▇▇ in which ▇▇▇▇▇▇ Mae agrees to send all cash proceeds of Mortgage Loans sold by such Borrower to ▇▇▇▇▇▇ ▇▇▇ to the Cash Collateral Account, each in form and content reasonably substance satisfactory to Credit Agreement.
(47) Receipt by Credit Agent and Lenders of any fees due on the Agentdate of this Agreement.
(48) An executed Electronic Tracking Agreement among Borrowers, Credit Agent and Mortgage Electronic Registration Systems, Inc. (“MERS”), and MERCORP, Inc., pursuant to which Credit Agent will have the authority to, among other things, withdraw Mortgages from the MERS system, if either the Mortgage Loan has been registered on the MERS system naming Borrowers as servicer or subservicer, or the Mortgage Loan has not yet been registered on the MERS system.
(b) All directors and officers of any CompanyIf, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall any Borrower has any indebtedness for borrowed money to any of its managers, members or Affiliates or any director, officer or shareholder of any manager, member or Affiliate of any manager or member, which indebtedness, when added to all other such indebtedness of each Borrower, results in an aggregate amount of such indebtedness in excess of $35,000,000, the Person to whom that Borrower is indebted must have caused such executed a Subordination of Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in on the form prescribed by Credit Agent; and Credit Agent must have received an executed copy of Exhibit C and taking all other stepsthat Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection respective Borrower to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Lennar Corp /New/)
Initial Advance. The obligations of the Lenders Lender’s obligation to fund their respective Funding Shares of make the initial Warehousing Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of Lender, of the following conditions precedent:
(a) The Agent shall have received (or be satisfied that it will Lender must receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This The Warehousing Note and this Agreement duly executed by all parties;Borrower.
(2) The Senior Credit NotesMMA’s articles of organization, each duly executed by the Companies;
(3) The Guarantytogether with all amendments, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of Delaware, MMA’s operating agreement, together with all amendments, certified by the manager of MMA, and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that MMA is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(3) A resolution, consent or approval of all of the members of MMA authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by MMA under this Agreement.
(4) A certificate as to the incumbency and authenticity of the signatures of the managers of MMA executing this Agreement and the other Loan Documents, and of the managers and employees of MMA delivering each Warehousing Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Lender being entitled to rely on that certificate until a new incumbency certificate has been furnished to Lender).
(5) Assumed Name Certificates dated within 90 days of the date of this Agreement for any assumed name used by MMA in the conduct of its business.
(6) MTEI’s articles of organization, together with all amendments, as certified by the Secretary of State of Maryland, MTEI’s operating agreement, together with all amendments, certified by the manager of MTEI, and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that MTEI is in good standing with the Franchise Tax Board or such company's incorporation state tax authority, if applicable.
(7) A resolution, consent or approval of all of the members of MTEI authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by MTEI under this Agreement.
(8) A certificate as to the incumbency and authenticity of the signatures of the managers of MTEI executing this Agreement and the other Loan Documents, and of the managers and employees of MTEI delivering each Warehousing Advance Request and all other agreements, instruments or documents to be Dated: 5/23/2003 Amended: 6/11/2004 delivered under this Agreement (Lender being entitled to rely on that certificate until a copy new incumbency certificate has been furnished to Lender).
(9) Assumed Name Certificates dated within 90 days of the date of this Agreement for any assumed name used by MTEI in the conduct of its bylaws business.
(10) Midland Mortgage’s articles of incorporation, together with all amendments, as certified by such Company's (or the Parent'sSecretary of State of Florida, as Midland Mortgage’s by-laws, together with all amendments, certified by the case may be) corporate secretary or assistant secretary;secretary of Midland Mortgage, or a certificate of Midland Mortgage stating that that has been no change in either Borrower’s articles or certificate of incorporation or bylaws since those delivered in connection with the Existing Agreement and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that Midland Mortgage is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(911) A resolution of the board of directors of Midland Mortgage authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by Midland Mortgage under this Agreement.
(12) A certificate as to the incumbency and authenticity of the signatures of the officers of Midland Mortgage executing this Agreement and the other Loan Documents, and of the officers and employees of Midland Mortgage delivering each Warehousing Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Lender being entitled to rely on that certificate until a new incumbency certificate has been furnished to Lender).
(13) Assumed Name Certificates dated within 90 days of the date of this Agreement for any assumed name used by Midland Mortgage in the conduct of its business.
(14) MMA Construction’s articles of organization, together with all amendments, as certified by the Secretary of State of Maryland, MMA Construction’s operating agreement, together with all amendments, certified by the manager of MMA Construction, and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that MMA Construction is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(15) A resolution, consent or approval of all of the members of MMA Construction authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by MMA Construction under this Agreement.
(16) A certificate as to the incumbency and authenticity of the signatures of the managers of MMA Construction executing this Agreement and the other Loan Documents, and of the managers and employees of MMA Construction delivering each Warehousing Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Lender being entitled to rely on that certificate until a new incumbency certificate has been furnished to Lender). Dated: 5/23/2003 Amended: 6/11/2004
(17) Assumed Name Certificates dated within 90 days of the date of this Agreement for any assumed name used by MMA Construction in the conduct of its business.
(18) MMA Capital’s articles of incorporation, together with all amendments, as certified by the Secretary of State of Michigan, MMA Capital’s by-laws, together with all amendments, certified by the corporate secretary or assistant secretary of MMA Capital, and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that MMA Capital is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(19) A resolution of the board of directors of MMA Capital authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by MMA Capital under this Agreement.
(20) A certificate as to the incumbency and authenticity of the signatures of the officers of MMA Capital executing this Agreement and the other Loan Documents, and of the officers and employees of MMA Capital delivering each Warehousing Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Lender being entitled to rely on that certificate until a new incumbency certificate has been furnished to Lender).
(21) Assumed Name Certificates dated within 90 days of the date of this Agreement for any assumed name used by MMA Capital in the conduct of its business.
(22) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial AdvanceBorrower, addressed to the Lenders Lender and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified dated as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, covering such matters as Lender may reasonably request.
(23) Uniform Commercial Code, tax lien and judgment searches of the Senior Credit Notes, appropriate public records for Borrower that do not disclose the Custody Agreement and all existence of any prior Lien on the Collateral other Facilities Papers to be delivered by the Companies pursuant to than in favor of Lender or as permitted under this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(1324) Copies of an the certificates, documents or other written instruments that evidence Borrower’s eligibility described in Section 9.1, all in form and substance satisfactory to Lender.
(25) Copies of Borrower’s errors and omissions insurance policy or mortgage impairment insurance policy policy, and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more showing compliance by Borrower as of the date of this Agreement, shall Agreement with the provisions of Section 7.9.
(26) A fully-executed Funding Bank Agreement and evidence that all accounts into which Warehousing Advances will be funded have caused such Debt -- excluding only been established at the debts and obligations described Funding Bank.
(27) Receipt by Lender of any fees due on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advancethis Agreement.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Municipal Mortgage & Equity LLC)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This The Note and this Agreement duly executed by all parties;the Company.
(2) The Senior Credit Notes, each duly executed Company's articles or certificate of incorporation as certified by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (Company's incorporation, bylaws certified by the State in which the chief executive office of each corporate secretary of the Companies is located);
(6) Company, or a UCC search report of a UCC filings search in the Office Certificate of the Secretary of State of Company stating that there has been no change in either the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by or bylaws since those delivered in connection with the Secretary Existing Agreement, and certificates of State or comparable officer good standing dated no less recently than 90 days prior to the date of this Agreement and a certification from the Franchise Tax Board of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or California stating that the Parent's, as Company is in good standing with the case may be) secretary or assistant secretary;Franchise Tax Board.
(93) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date resolution of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy board of directors of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement.
(4) A certificate of the Company's corporate secretary as to the incumbency and authenticity of the signatures of the officers of the Company executing this Agreement and the other Loan Documents and each Advance Request and all other instruments or documents to be delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender).
(5) Financial statements of the Company (and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of April 30, 1999 and related statements of income, changes in stockholders' equity and cash flows for the period ended on such date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by independent certified public accountants of recognized standing acceptable to the Lender and containing a footnote concerning a subsequent cash equity investment of $6,000,000 or more.
(6) Financial statements of the Company (and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of May 31, 1999 and June 30, 1999, related statements of income and changes in stockholders' equity for the period ended on such date prepared in accordance with GAAP applied on a basis consistent with the Company's most recent audited financial statements.
(7) The Guaranty, in the form attached hereto as EXHIBIT B, duly executed by the Guarantor.
(8) Copies of the Guarantor's articles or certificate of incorporation as certified by the Secretary of State of the State of Guarantor's incorporation and bylaws, and (ii) certificates of good standing issued by the Parent Secretary of State dated no less recently than 90 days prior to the date of this Agreement.
(9) A resolution of the board of directors of the Guarantor, certified as of the date of the Agreement by its corporate secretary, authorizing the execution, delivery and performance of the Guaranty, respectively;and all other instruments or documents to be delivered by the Guarantor pursuant to this Agreement.
(1110) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company Guarantor executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance Guaranty and all other Facilities Papers executed instruments or documents to be executed delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender).
(11) Financial statements of the Guarantor containing a balance sheet as of April 30, 1999 and related statements of income, changes in stockholders' equity and cash flows for the period ended on the above date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by independent certified public accountants of recognized standing acceptable to the Lender, and containing a footnote concerning a subsequent cash equity investment of $13,000,000 or more.
(12) Financial statements of the Guarantor containing a balance sheet as of May 31, 1999, and related statements of income, changes in stockholders' equity and cash flows for the period ended on behalf the above date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and reviewed by independent certified public accountants of recognized standing acceptable to the Lender.
(13) A favorable written opinion of counsel to the Company and the Guarantor (or of separate counsel at the option of the Company and (y) the officers Guarantor), dated as of the Parent executing date of this Agreement substantially in the Guarantyform of EXHIBIT H attached hereto, respectivelyaddressed to the Lender.
(14) Uniform Commercial Code, tax lien and (ii) judgment searches of the authenticity of their signatures -- appropriate public records for the Company and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, which searches shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as applicable, has furnished a new certificate to the Agent);permitted hereunder.
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(1315) Copies of an the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to the Lender.
(16) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the AgentLender, showing compliance by the Company as of the date of this Agreement with the related provisions of Section 6.8 hereof.
(17) Executed financing statements in recordable form covering the Collateral and ready for filing in all jurisdictions required by the Lender.
(18) Receipt by the Lender of any fees due on the date hereof, including, but not limited to, Commitment Fees and document production fees.
(19) Evidence that all accounts necessary into which Advances will be funded have been established at the Funding Bank and receipt of a fully executed Funding Bank Agreement.
(b) All directors directors, officers and officers shareholders of any the Company, all shareholders of any Company and all Affiliates of any the Company or the Parent or of any Subsidiary of any of the CompaniesCompany, and the Guarantor, to whom or which to any of whom the Companies Company shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, which indebtedness has a term of more than one (1) year or is in excess of $100,000 shall have caused subordinated such Debt -- excluding only indebtedness to the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this AgreementObligations, by executing and causing to be delivered to the Agent a Subordination Agreement substantially of Debt Agreement, in the form of Exhibit C EXHIBIT F hereto; and taking all other stepsthe Lender shall have received an executed copy of any such Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Finet Com Inc)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of the initial make any Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof, of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement The Loan Documents dated as of the date hereof duly executed by all partiesthe Company;
(2) The Senior Credit Notes, each duly executed A certificate of corporate resolutions by the Companiescorporate secretary of the Company in the form of Exhibit “J” attached hereto certifying the resolutions authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, and all other instruments or documents to be delivered by the Company pursuant to this Agreement;
(3) The GuarantyFinancial statements of the Company (and its Subsidiaries, duly on a consolidated basis) containing a balance sheet as of December 31, 2005 (the “Statement Date”) and related statements of income, changes in stockholders’ equity and cash flows for the period ended on the Statement Date and a balance sheet as of March 31, 2006 (“Interim Date”) and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Lender, together with an Officer Certificate prepared as of the Interim Date and executed by the Parent;president or chief financial officer of the Company; and
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies Company, dated as of June 1, 2006 in form and substance satisfactory to the Parent dated on or before the date of the initial AdvanceLender, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the AgentLender.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Sirva Inc)
Initial Advance. The obligations obligation of the Lenders Banks to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Banks, on or before the date thereof of the following conditions precedent:
(a) The Agent Banks shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) counterparts of the following, all of which must be satisfactory in form and content to the Agent Agent, in its sole discretion:
(1) This Agreement The Notes duly executed by all partiesthe Company;
(2) The Senior Credit NotesGuarantees, each in the form attached hereto as Exhibit B, duly executed by the CompaniesGuarantors;
(3) The GuarantyCertified copies of the Company's articles of incorporation and bylaws, duly executed by and certificates of good standing dated no less recently than three (3) months prior to the Parentdate of the initial Advance;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies Company and the Parent Guarantors (or of separate counsel at the option of the Company and the Guarantors) in form and content satisfactory to the Banks, dated on as of, or before prior to, the date of the initial Advance, addressed to the Lenders Banks and the Agent and Agent, substantially in the form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in attached hereto as Exhibit G);I.
(105) A copy An original resolution of the resolutions board of directors of each Company's of PMC and the Parent's boards of directorsRF Properties, certified as of the date of the initial Advance by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(116) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, Notes and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentBanks);
(127) An Officer's Certificate Original independently audited financial statements of the Company (and their Subsidiaries, on a consolidated basis) for each Company the most recent fiscal year end containing a balance sheet and related statements of income and retained earnings (the "Statement Date") and changes in financial position for the period ended on the Statement Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and acceptable to the Banks;
(8) Financial statements of the Guarantors, signed by them, dated no less recently than three (3) months prior to the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and;
(139) Copies of an the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to the Agent;
(10) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent., showing compliance by the Company as of the date of the initial Advance with the related provisions of Section 6.8 hereof;
(11) With respect to each Advance, a copy of irrevocable instructions to the Investor stating that payment for the Mortgage Loan will be remitted to the Banks in the form of Exhibit J;
(12) A power of attorney in the form of Exhibit K; and
(13) A Master Bailee Agreement for Foreclosure Loans in the form of Exhibit L.
(b) All directors and officers At the sole discretion of the Banks, the Banks may require any director, officer or shareholder of the Company, all shareholders of any Company and all Affiliates of any the Company or the Parent or of any Subsidiary of any the Company, and each of the CompaniesGuarantors, to whom or which to any of whom the Companies Company shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such to execute a Subordination of Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C F hereto; and taking all other stepsthe Banks shall have received an executed copy of said Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (PMCC Financial Corp)
Initial Advance. The obligations of the Lenders Lenders’ obligation to fund their respective Funding Shares of the initial Advance under this Agreement are make Warehousing Advances and RFC’s obligation to make RFC Direct Advances, is subject to the Companies' fulfillment satisfaction, in the sole discretion of Credit Agent, of the following conditions precedent:
(a) The Credit Agent shall have received (or be satisfied that it will must receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Credit Agent, in its sole discretion:
(1) This The Notes and this Agreement duly executed by all parties;Borrowers.
(2) The Senior Lennar Undertaking, on the form prescribed by Credit NotesAgent, each duly executed by the Companies;Lennar.
(3) The GuarantyUAMCLLC’s articles of organization, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreementtogether with all amendments, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State of Florida, UAMCLLC’s operating agreement, together with all amendments, certified by the manager of UAMCLLC, or comparable officer a certificate of UAMCLLC stating that there has been no change in either UAMCLLC’s articles of organization or operating agreement since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 60 days of the date of this Agreement.
(4) A resolution, consent or approval of all of the members of UAMCLLC authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMCLLC under this Agreement.
(5) A certificate as to the incumbency and authenticity of the signatures of the managers of UAMCLLC executing this Agreement and the other Loan Documents.
(6) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by UAMCLLC in the conduct of its business.
(7) EHMI’s articles of incorporation, together with all amendments, as certified by the Secretary of State of such company's incorporation and a copy of its bylaws Washington; EHMI’s bylaws, together with all amendments, certified by such Company's (or the Parent's, as the case may be) corporate secretary or assistant secretary;secretary of EHMI; or a certificate of EHMI stating that there has been no change in either EHMI’s articles of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 60 days of the date of this Agreement.
(8) A resolution of the board of directors of EHMI authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by EHMI under this Agreement.
(9) A favorable written opinion of counsel certificate as to the Companies incumbency and authenticity of the signatures of the officers of EHMI executing this Agreement and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);other Loan Documents.
(10) A copy Assumed Name Certificates dated within 30 days of the resolutions date of each Company's this Agreement for any assumed name used by EHMI in the conduct of its business.
(11) AFSI’s articles of incorporation, together with all amendments, as certified by the Secretary of State of California; AFSI’s bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of AFSI; or a certificate of AFSI stating that there has been no change in either AFSI’s articles of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 30 days of the date of this Agreement.
(12) A resolution of the board of directors of AFSI authorizing the execution, delivery and performance of this Agreement and the Parent's boards other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by AFSI under this Agreement.
(13) A certificate as to the incumbency and authenticity of directorsthe signatures of the officers of AFSI executing this Agreement and the other Loan Documents.
(14) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by AFSI in the conduct of its business.
(15) UAMCC’s articles of incorporation, together with all amendments, as certified by the Secretary of State of California; UAMCC’s bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of UAMCC; or a certificate of UAMCC stating that there has been no change in either UAMCC’s articles of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 30 days of the date of this Agreement.
(16) A resolution of the board of directors of UAMCC authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMCC under this Agreement.
(17) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMCC executing this Agreement and the other Loan Documents.
(18) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by UAMCC in the conduct of its business.
(19) UAMC Asset’s articles of incorporation, together with all amendments, as certified by the Secretary of State of Nevada; UAMC Asset’s bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of UAMC Asset; or a certificate of UAMC Asset stating that there has been no change in either UAMC Asset articles of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 30 days of the date of this Agreement.
(20) A resolution of the board of directors of UAMC Asset authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMC Asset under this Agreement.
(21) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMC Asset executing this Agreement and the other Loan Documents.
(22) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by UAMC Asset in the conduct of its business.
(23) Lennar’s articles or certificate of incorporation, together with all amendments, as certified by the Secretary of State of Florida, bylaws certified by the corporate secretary of Lennar, or a certificate of Lennar stating that there has been no change in either Lennar’s articles or certificate of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 30 days of the date of this Agreement.
(24) A resolution of the board of directors of Lennar, certified as of the date of the initial Advance Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementLennar Undertaking, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers agreements, instruments or documents to be delivered by the Companies pursuant to Lennar under this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(1125) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company Lennar executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance Lennar Undertaking and all other Facilities Papers executed agreements, instruments or documents to be executed by or on behalf of the Company and delivered under this Agreement (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be Lender being entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new incumbency certificate has been furnished to the AgentLender);.
(1226) An Officer's Certificate for each Company A favorable written opinion of counsel to Borrowers and Lennar (or of separate counsel at the option of Borrowers and Lennar), addressed to Lenders and dated as of the date of this Agreement, covering such matters as Lenders may reasonably request.
(27) Uniform Commercial Code, tax lien and judgment searches of the initial Advance and certifying that, after giving effect to appropriate public records for each Borrower that Advance, no Default do not disclose the existence of any prior Lien on the Collateral other than in favor of Credit Agent or Event of Default will exist as permitted under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; andAgreement.
(1328) Copies of an the certificates, documents or other written instruments that evidence Borrowers’ eligibility described in Section 9.1, all in form and substance satisfactory to Credit Agent.
(29) Copies of each Borrowers’ errors and omissions insurance policy or mortgage impairment insurance policy policy, and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage showing compliance by each Borrower as is customary for members of the Companies' industrydate of this Agreement with the provisions of Section 7.9.
(30) An agreement among each Borrower that is selling Loans to F▇▇▇▇▇ Mae, Credit Agent and F▇▇▇▇▇ M▇▇ in which F▇▇▇▇▇ Mae agrees to send all cash proceeds of Mortgage Loans sold by such Borrower to F▇▇▇▇▇ M▇▇ to the Cash Collateral Account, each in form and content reasonably substance satisfactory to Credit Agreement.
(31) Receipt by Credit Agent and Lenders of any fees due on the Agentdate of this Agreement.
(32) An executed Electronic Tracking Agreement among Borrowers, Credit Agent and Mortgage Electronic Registration Systems, Inc. (“MERS”), and MERCORP, Inc., pursuant to which Credit Agent will have the authority to, among other things, withdraw Mortgages from the MERS system, if either the Mortgage Loan has been registered on the MERS system naming Borrowers as servicer or subservicer, or the Mortgage Loan has not yet been registered on the MERS system.
(b) All directors and officers of any CompanyIf, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall any Borrower has any indebtedness for borrowed money to any of its managers, members or Affiliates or any director, officer or shareholder of any manager, member or Affiliate of any manager or member, which indebtedness, when added to all other such indebtedness of each Borrower, results in an aggregate amount of such indebtedness in excess of $35,000,000, the Person to whom that Borrower is indebted must have caused such executed a Subordination of Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in on the form prescribed by Credit Agent; and Credit Agent must have received an executed copy of Exhibit C and taking all other stepsthat Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection respective Borrower to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Lennar Corp /New/)
Initial Advance. The obligations of the Lenders to fund their respective Funding Shares of the initial Advance under this Agreement are subject On or prior to the Companies' fulfillment of Closing Date, Borrower shall have delivered to Agent the following conditions precedentfollowing:
(a) The executed copies of the Loan Documents, Account Control Agreements, together with copies of all executed closing deliverables required pursuant to the terms thereof, and all other documents and instruments reasonably required by Agent shall have received (to effectuate the transactions contemplated hereby or be satisfied that it will receive by such deadline as to create and perfect the Liens of Agent shall specify) the followingwith respect to all Collateral, in all of which must be satisfactory cases in form and content substance reasonably acceptable to the Agent in its sole discretion:
(1) This Agreement duly executed by all partiesAgent;
(2b) The Senior Credit Notesa legal opinion of Borrower’s US counsel in form and substance reasonably acceptable to Agent, and a legal opinion of Loan Parties’ Israeli counsel; sf-4553578
(c) certified copy of resolutions of each duly executed Loan Party’s board of directors evidencing approval of the Loan and other transactions evidenced by the CompaniesLoan Documents;
(3d) The Guarantycertified copies of the Certificate of Incorporation, duly executed by the ParentBylaws, and the Articles of Association (as applicable), as amended through the Closing Date, of each Loan Party;
(4e) a certificate of good standing (or foreign equivalent or insolvency search, as applicable) for each Loan Party from its jurisdiction of organization and similar certificates from all other jurisdictions in which it does business and where the 12/00 Amendment failure to Class R Security Agreement of even date herewithbe qualified could have a Material Adverse Effect;
(5f) UCC a perfection certificate of the Loan Parties, collectively, together with duly executed signatures thereto;
(g) a duly executed payoff letter from the Existing Lender relating to that certain Loan and Security Agreement, dated as January 30, 2019, by and between the Existing Lender and the Borrower and the Guarantor (as a co-borrower), as the same has been amended, restated or otherwise modified from time to time, which payoff letter includes release letters to the Israeli Registrar of Companies releasing all existing pledges over the collateral under such Loan and Security Agreement;
(h) certified copies, dated as of a recent date, of searches for financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent filed in the central filing office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (Delaware or the Parent'sDistrict of Columbia, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable accompanied by evidence satisfactory to the Agent and its legal counsel (opinions required to that the Liens on any Collateral indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Term Loan Advance, will be included therein are set forth in Exhibit G)terminated or released;
(10i) A copy customary Intellectual Property search results with respect to the Loan Parties;
(j) [reserved];
(k) payment of the resolutions Initial Facility Charge and reimbursement of each Company's Agent’s and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies Lenders’ current expenses reimbursable pursuant to this Agreement, and (ii) by which amounts may be deducted from the Parent of the Guaranty, respectivelyinitial Advance;
(11l) A certificate all certificates of insurance and copies of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent)insurance policy required hereunder;
(12m) An Officer's Certificate for each Company dated the date four original copies of Forms 10 of the initial Advance and certifying thatIsraeli ROC, after giving effect executed by an officer of Eloxx ISR;
(n) copies of each ISR Security Document, together with all executed closing deliverables required pursuant to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any terms thereof delivered to ▇▇▇▇▇ ▇▇▇▇▇ & Co;
(o) copy of the Central Elements relative notice of pledge with respect to the CompanyPledge Agreement to be filed with the Israeli Registrar of Pledges;
(p) a Process Letter in accordance with clause (f) of Addendum 4; and
(13q) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage other documents as is customary for members of the Companies' industry, all in form and content Agent may reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.request. sf-4553578
Appears in 1 contract
Sources: Loan and Security Agreement (Eloxx Pharmaceuticals, Inc.)
Initial Advance. The obligations of At or prior to the Lenders to fund their respective Funding Shares making of the initial Advance under this Agreement are subject to the Companies' fulfillment extension of credit hereunder, the following conditions precedentprecedent shall also have been satisfied:
(a) The Agent the Bank shall have received the following (or and, with respect to all documents, each to be satisfied that it will receive by such deadline properly executed and completed) and the same shall have been approved as the Agent shall specify) the following, all of which must be satisfactory in to form and content to substance by the Agent in its sole discretionBank:
(1i) This Agreement duly executed by all partiesthe Note;
(2ii) The Senior Credit Notes, each duly executed by the CompaniesGuaranty;
(3iii) The Guaranty, duly copies (executed by the Parent;
(4or certified as may be appropriate) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office resolutions of the Secretary Board of State Directors or other governing body of the State of Pennsylvania (the State in which the chief executive office Borrower and of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, Subsidiary Guarantor authorizing the execution, delivery delivery, and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectivelyLoan Documents;
(11iv) A certificate articles of incorporation (or equivalent formation documents) of the Borrower and of each Company's and Subsidiary Guarantor certified by the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers appropriate governmental office of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf state of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent)its organization;
(12v) An Officer's Certificate by-laws (or equivalent governing documents) for the Borrower and for each Company dated Subsidiary Guarantor certified by an appropriate officer of such Person acceptable to the date Bank;
(vi) an incumbency certificate containing the name, title and genuine signature of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the CompanyBorrower's Authorized Representatives; and
(13vii) Copies a good standing certificate for the Borrower and each Subsidiary, dated as of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory a date no earlier than 30 days prior to the Agent.date hereof, from the appropriate governmental offices in the state of its incorporation or organization and in each state in the United States in which it is qualified to do business as a foreign organization;
(b) All directors the Bank shall have received the closing fees specified in Section 2.13(c) hereof;
(c) the Bank shall have received the Intercreditor Agreement;
(d) the Bank shall have received such valuations and officers of any Company, all shareholders of any Company and all Affiliates of any Company or certifications as it may require in order to satisfy itself as to the Parent or any Subsidiary of any financial condition of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts Borrower and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so definedits Subsidiaries, and the corporate secretary lack of material contingent liabilities of the relevant Company or Borrower and its Subsidiaries;
(e) legal matters incident to the Parent execution and delivery of the Loan Documents and to the transactions contemplated hereby shall be satisfactory to the Bank and its counsel;
(f) the Bank shall have received financing statement, tax and judgment lien search results against the Property of the Borrower and its Subsidiaries, evidencing the absence of Liens on their Property except as permitted by Section 6.11 hereof; and
(g) the Bank shall have received such other agreements, instruments, documents, certificates and opinions as the case Bank may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advancereasonably request.
Appears in 1 contract
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement duly executed by all parties;
(2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by Note and this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;Borrowers.
(8) Copies of each Company's and the Parent2) BNC's articles or certificate of incorporation as certified by the Secretary of State or comparable officer of BNC's incorporation, bylaws certified by the corporate secretary of BNC, and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and a certification from the Franchise Tax Board of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or California stating that BNC is in good standing with the Parent's, as the case may be) secretary or assistant secretary;Franchise Tax Board.
(93) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date resolution of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy board of the resolutions directors of each Company's and the Parent's boards of directorsBNC, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies BNC pursuant to this Agreement.
(4) A certificate of BNC's corporate secretary as to the incumbency and authenticity of the signatures of the officers of BNC executing this Agreement and the other Loan Documents and each Advance Request and all other instruments or documents to be delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender).
(5) Financial statements of BNC and its Subsidiaries, on a consolidated and consolidating basis containing a balance sheet as of June 30, 1998, and related statements of income, changes in stockholders' equity and cash flows for the period ended on such date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by independent certified public accountants of recognized standing acceptable to the Lender.
(ii6) Financial statements of BNC and its Subsidiaries, on a consolidated and consolidating basis containing a balance sheet as of , related statements of income and changes in stockholders' equity for the period ended on such date prepared in accordance with GAAP applied on a basis consistent with the BNC's most recent audited financial statements.
(7) Mortgage Logic's articles of incorporation as certified by the Parent Secretary of State of the GuarantyMortgage Logic's incorporation, respectively;bylaws certified by the corporate secretary of Mortgage Logic, and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and a certification from the Franchise Tax Board of the State of California stating that Mortgage Logic is in good standing with the Franchise Tax Board.
(8) A resolution of the board of directors of Mortgage Logic, certified as of the date of this Agreement by its corporate secretary, authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, and all other instruments or documents to be delivered by Mortgage Logic pursuant to this Agreement.
(9) A certificate of Mortgage Logic's corporate secretary as to the incumbency and authenticity of the signatures of the officers of Mortgage Logic executing this Agreement and the other Loan Documents and each Advance Request and all other instruments or documents to be delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender).
(10) A favorable written opinion of counsel to BNC and Mortgage Logic (or of separate counsel at the option of BNC and Mortgage Logic), dated as of the date of this Agreement substantially in the form of Exhibit H attached hereto, addressed to the Lender.
(11) A certificate of each Company's Uniform Commercial Code, tax lien and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers judgment searches of the Company executing this Agreementappropriate public records for BNC and Mortgage Logic, which search shall not have disclosed the Senior Credit Notes, existence of any prior Lien on the Custody Agreement, each applicable Request for Advance and all Collateral other Facilities Papers executed or to be executed by or on behalf than in favor of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate Lender or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);permitted hereunder.
(12) An Officer's Certificate for each Company dated the date Copies of the initial Advance certificates, documents or other written instruments which evidence the Borrowers' eligibility described in Section 5.13 hereof, all in form and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative substance satisfactory to the Company; andLender.
(13) Copies of an the Borrowers' errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the AgentLender, showing compliance by the Borrowers as of the date of this Agreement with the related provisions of Section 6.8 hereof.
(14) Executed financing statements in recordable form covering the Collateral and ready for filing in all jurisdictions required by the Lender.
(15) Receipt by the Lender of any fees due on the date hereof, including, but not limited to, Commitment Fees and document production fees.
(16) Evidence that all accounts necessary into which Advances will be funded have been established at the Funding Bank and receipt of a fully executed Funding Bank Agreement.
(17) An agreement among the Borrowers, the Lender and Fann▇▇ ▇▇▇, pursuant to which Fann▇▇ ▇▇▇ agrees to send all cash proceeds of Mortgage Loans sold by the Borrowers to Fann▇▇ ▇▇▇ ▇▇ the Cash Collateral Account.
(b) All directors directors, officers and officers of any Company, all shareholders of any Company and the Borrowers, all Affiliates of any Company the Borrowers or the Parent or of any Subsidiary of any of the CompaniesBNC or Mortgage Logic, to whom or which to any of whom the Companies Borrowers shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, which indebtedness has a term of more than one (1) year or is in excess of One Hundred Thousand Dollars ($100,000) shall have caused subordinated such Debt -- excluding only indebtedness to the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this AgreementObligations, by executing and causing to be delivered to the Agent a Subordination Agreement substantially of Debt Agreement, in the form of Exhibit C F hereto; and taking all other stepsthe Lender shall have received an executed copy of any such Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection Borrower to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (BNC Mortgage Inc)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof, of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement The Loan Documents dated as of the date hereof duly executed by all partiesthe Company;
(2) The Senior Credit Notes, each duly executed by Certified copies of the CompaniesCompany's articles of incorporation and bylaws and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and a certification from the taxing authority of the state of incorporation stating that the Company is in good standing with said taxing authority;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office An original resolution of the Secretary board of State directors of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(114) A certificate (in the form of each EXHIBIT "J") of the Company's and the Guarantor's corporate secretary as to (i) the resolution of the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the other Loan Documents and the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, other Loan Documents and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Lender being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentLender);
(125) An Officer's Certificate Financial statements of the Company (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of June 30, 1998 (the "Statement Date") and related statements of income, changes in stockholders' equity and cash flows for each Company the period ended on the Statement Date and a balance sheet as of September 30, 1998 ("Interim Date") and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Lender;
(6) A favorable written opinion of counsel to the Company, dated as of the date of this Agreement, to be in substantially the initial Advance form of EXHIBIT "M" hereto, and certifying thataddressed to the Lender;
(7) A tax, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement lien and that there has been no material adverse change since the Statement Date in any judgment search of the Central Elements relative appropriate public records for the Company, including a search of Uniform Commercial Code financing statements, which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder;
(8) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.11 hereof, all in form and substance satisfactory to the Company; andLender;
(139) Copies of an the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any CompanyLender, all shareholders of any showing compliance by the Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused Agreement with the related provisions of Section 6.8 hereof and showing Lender as an additional loss payee on such Debt -- excluding only policies;
(10) Executed financing statements in recordable form covering the debts Collateral and obligations described on Schedule 8.1(bready for filing in all jurisdictions required by the Lender;
(11) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to Evidence that the Agent a Subordination Agreement substantially in Funding Account has been established with the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the AdvanceLender.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (BNC Mortgage Inc)
Initial Advance. The obligations of the Lenders shall not be required to fund their respective Funding Shares of make the initial Advance under this Agreement are subject hereunder, or issue the initial Facility Letter of Credit hereunder, unless and until (a) the Borrower shall, prior to or concurrently therewith, have paid all fees due and payable to the Companies' fulfillment of Lenders and the following conditions precedentAdministrative Agent hereunder, and (b) the Borrower shall have furnished to the Administrative Agent the following:
(a) The Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent in its sole discretion:
(1) This Agreement duly executed by all parties;
originals of this Agreement (2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) with sufficient originals thereof for each of the CompaniesLenders), ABFS 1998-2 the Notes payable to each of the Lenders, the Guaranty, the Security Documents and any other additional Loan Documents, provided that Borrower may defer the effective date of the Collateral Assignment relating to the Pledged Equity Interests in the Partnership Interest Property known as Polaris Towne Center until the expiration of the advance notice period required under the Secured Indebtedness on such Partnership Interest Property, so long as Borrower has executed and delivered to the Administrative Agent in escrow an executed but undated version of such Collateral Assignment and the Parentcontributions of such Pledged Equity Interest to Collateral Pool LTV Amount and Adjusted Collateral Pool NOI shall be excluded until such Collateral Assignment has become effective;
(7A) The Custody Agreement duly executed Certificates of good standing for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property from their states of organization, certified by the Companies appropriate governmental officer and Chase as Custodiandated not more than sixty (60) days prior to the Agreement Effective Date, and (B) foreign qualification certificates for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property, certified by the appropriate governmental officer and dated not more than sixty (60) days prior to the Agreement Effective Date, for each jurisdiction in which the executive offices of a Loan Party is located and each jurisdiction in which a Mortgage Property or Partnership Interest Property owned by such Loan Party or other entity is located;
(8) c) Copies of the formation documents (including code of regulations, if appropriate) of the Loan Parties and each Company's and the Parent's articles entity directly or certificate of incorporation indirectly owning a Partnership Interest Property, certified by the Secretary of State or comparable an officer of the State of Borrower or such company's incorporation and a copy of its bylaws certified by such Company's (other Loan Party or the Parent'sentity, as the case may be) secretary or assistant secretaryappropriate, together with all amendments thereto;
(9d) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial AdvanceIncumbency certificates, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance executed by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing Loan Parties, which shall identify by name and title and bear the signature of the Persons authorized to sign this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance additional Loan Documents and all other Facilities Papers executed or to be executed by or make borrowings hereunder on behalf of such parties, upon which certificate the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Administrative Agent and the Lenders shall be entitled to rely on that certificate until informed of any change in writing by the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent)applicable Loan Party;
(12e) An Officer's Certificate for each Company dated the date Copies, certified by a Secretary or an Assistant Secretary of the initial Advance applicable Loan Party, of the Board of Directors’ resolutions (and certifying thatresolutions of other bodies, after giving effect if any are reasonably deemed necessary by counsel for the Administrative Agent) authorizing the Advances provided for herein, with respect to the Borrower, and the execution, delivery and performance of this Agreement and the additional Loan Documents to be executed and delivered by the applicable Loan Party;
(f) A written opinion of the Loan Parties’ counsel, addressed to the Lenders in substantially the form of Exhibit E hereto or such other form as the Administrative Agent may reasonably approve;
(g) A certificate, signed by an Authorized Officer of the Borrower, stating that Advance, on the Agreement Effective Date no Default or Event of Unmatured Default will exist under this Agreement has occurred and that is continuing, and there has been no material adverse change since the Statement Date in any Material Adverse Effect and that all representations and warranties of the Central Elements relative to the Company; and
(13) Copies of an errors Borrower are true and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates correct in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more material respects as of the date Agreement Effective Date, provided that such certificate is in fact true and correct;
(h) The most recent financial statements of this Agreement, shall have caused such Debt -- excluding only the debts Borrower and obligations described on Schedule 8.1(bthe Parent Entities;
(i) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered UCC financing statement searches with respect to the Borrower and each of the other Loan Parties from the state of its organization;
(j) Written money transfer instructions, addressed to the Administrative Agent a Subordination Agreement substantially and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(k) A pro forma compliance certificate in the form of Exhibit C A, utilizing the new covenants established herein and taking executed by the Borrower’s chief financial officer or chief operating officer;
(l) Evidence that all other stepsfees due to each of the Lenders with respect to this Agreement have been paid;
(m) Copies of a certified rent roll, leasing activity reports, tenant sales reports (if applicable), Major Leases, operating statements, title insurance commitments, surveys (which may be existing surveys accompanied by a certificate of no change from Borrower, if anyapplicable), required Appraisals for the Mortgage Properties dated not more than six (6) months prior to cause such Debt the Agreement Effective Date, a recent property condition report, flood zone determination (if not indicated on survey) and most recent engineering and “phase I” environmental assessments with respect to be Subordinated Debteach Mortgage Property, as so definedestoppel certificates and subordination, non-disturbance and attornment agreements for Major Leases with respect to each Mortgage Property (in a form reasonably satisfactory to the corporate secretary of Administrative Agent and to the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy extent available after reasonable collection efforts), together with insurance certificates satisfying the requirements of this Subsection Section 5.16 below, and such other due diligence materials as the Administrative Agent shall reasonably require for each such Mortgage Property or Partnership Interest Property, in addition to a written opinion of the Borrower’s counsel (or a designated local counsel in the jurisdiction of the Mortgage Property) addressed to the Lenders in a form reasonably satisfactory to the Administrative Agent regarding each Security Document;
(n) Evidence that each of the Mortgages has been recorded and the applicable title company has committed to issue a title insurance policy insuring such Mortgage in an amount and form, and with such coverages and endorsements, as are all reasonably satisfactory to the Administrative Agent;
(o) Evidence in the form of an escrow and related undertakings from a title insurance company satisfactory to the Administrative Agent that all Indebtedness secured by the initial Collateral Pool Properties immediately prior to the Agreement Effective Date shall be true, complete and repaid in full force and effect as from the proceeds of the date initial Advance hereunder.
(p) Evidence satisfactory of the Administrative Agent of payment in full of all amounts due to any lenders under the Original Credit Agreement which are not continuing as Lenders hereunder.
(q) Such other documents as the Administrative Agent or its counsel may have reasonably requested, the form and substance of which documents shall be reasonably acceptable to the parties and their respective counsel. Upon satisfaction of the foregoing conditions precedent and the funding of the initial Advance, the Administrative Agent shall execute and deliver to Borrower a release of any security interests created pursuant to any “Collateral Assignments” not continuing in effect hereunder or the “Account Pledge Agreement” (as such terms are defined in the Original Credit Agreement) and terminations of any related UCC financing statements.
Appears in 1 contract
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof, of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement The Loan Documents dated as of the date hereof duly executed by all partiesthe Borrowers;
(2) The Senior Credit NotesCertified copies of each Borrower's articles of incorporation and bylaws and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and, with respect to each duly executed by Borrower, a certification from the Companies;taxing authority of the state of incorporation stating that the applicable Borrower is in good standing with said taxing authority:
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office An original resolution of the Secretary board of State of the State of Pennsylvania (the State in which the chief executive office directors of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directorsBorrower, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies such Borrower pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(114) A certificate (in the form of EXHIBIT "J-1" OR "J-2", as the case may be) of each Company's and the GuarantorBorrower's corporate secretary as to (i) the resolution of the board of directors of such Borrower authorizing the execution, delivery and performance of this Agreement and the other Loan Documents and the incumbency and authenticity of (x) the signatures of the officers of the Company such Borrower executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, other Loan Documents and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Lender being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentLender);
(125) An Officer's Certificate Financial statements of the Company (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 1998 (the "Statement Date") and related statements of income, changes in stockholders' equity and cash flows for each Company the period ended on the Statement Date and a balance sheet as of January 31, 1999 ("Interim Date") and related statement of income for
(6) A favorable written opinion of counsel to the Borrowers, dated as of the date of this Agreement, to be in substantially the initial Advance form of EXHIBIT "M" hereto, and certifying thataddressed to the Lender;
(7) A tax, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement lien and that there has been no material adverse change since the Statement Date in any judgment search of the Central Elements relative appropriate public records for each Borrower, including a search of Uniform Commercial Code financing statements, which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder;
(8) Copies of the certificates, documents or other written instruments which evidence each Borrower's eligibility described in Section 5.11 hereof, all in form and substance satisfactory to the Company; andLender;
(139) Copies of an each Borrower's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any CompanyLender, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more showing compliance by such Borrower as of the date of this Agreement, shall have caused Agreement with the related provisions of Section 6.8 hereof and showing Lender as an additional loss payee on such Debt -- excluding only policies;
(10) Executed financing statements in recordable form covering the debts Collateral and obligations described on Schedule 8.1(bready for filing in all jurisdictions required by the Lender;
(11) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to Evidence that the Agent a Subordination Agreement substantially in Funding Account has been established with the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the AdvanceLender.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Hanover Capital Mortgage Holdings Inc)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof, of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement The Loan Documents dated as of the date hereof duly executed by all partiesthe Company;
(2) The Senior Credit Notes, Certified copies of each duly executed by Company's articles of formation and membership agreement and certificates of good standing dated no less recently than ninety (90) days prior to the Companiesdate of this Agreement and a certification from the taxing authority of the state of formation stating that the Company is in good standing with said taxing authority;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office An original resolution of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies members of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's corporate secretarymanaging member, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(114) A certificate (in the form of Exhibit J) of each Company's and the Guarantor's corporate secretary managing member as to the resolution of the members of each Company
(i5) the incumbency of (x) the officers Consolidated Financial statements of the Company executing this Agreement(and their Subsidiaries, on a consolidated basis) containing an audited balance sheet as of November 15, 1999 (the Senior Credit Notes"Statement Date") and related statements of income, changes in partners' equity and cash flows for the Custody Agreementperiod ended on the Statement Date, each applicable Request for Advance all prepared in accordance with GAAP applied on a basis consistent with prior periods and all other Facilities Papers executed or to be executed by or on behalf in the case of the Company and (y) the officers statements as of the Parent executing the GuarantyStatement Date, respectively, and (ii) the authenticity audited by independent certified public accountants of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate recognized standing acceptable to the Agent)Lender;
(126) An Officer's Certificate for each Company dated the date A favorable written opinion of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative outside counsel to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more dated as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so definedM hereto, and addressed to the corporate secretary Lender;
(7) A tax, lien and judgment search of the relevant Company or appropriate public records for each Company, including a search of Uniform Commercial Code financing statements, which search shall not have disclosed the Parent (as existence of any prior Lien on the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and Collateral other than in full force and effect as favor of the date Lender or as permitted hereunder;
(8) Copies of the Advance.certificates, documents or other written instruments which evidence each Company's eligibility described in Section 5.11 hereof, all in form and substance satisfactory to the Lender;
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (First NLC Financial Services Inc)
Initial Advance. The obligations of At or prior to the Lenders to fund their respective Funding Shares making of the initial Advance under this Agreement are subject to the Companies' fulfillment extension of credit hereunder, the following conditions precedentprecedent shall also have been satisfied:
(a) The Agent the Bank shall have received the following (or each to be satisfied that it will receive by such deadline properly executed and completed) and the same shall have been approved as the Agent shall specify) the following, all of which must be satisfactory in to form and content to substance by the Agent in its sole discretionBank:
(1i) This Agreement duly executed by all partiesthe Notes;
(2ii) The Senior Credit Notes, each duly executed by an additional Lockbox Agreement for the CompaniesCompany which may be provided within five (5) days of the date hereof;
(3iii) The Guarantythe Collateral Documents, duly executed together with any financing statements requested by the ParentBank in connection therewith and together with stock certificates and stock powers endorsed in blank for the Company and Acquisition Corp.;
(4iv) copies (executed or certified, as may be appropriate) of all legal documents or proceedings taken in connection with the 12/00 Amendment execution and delivery of the Bread Shop Acquisition and in connection with this Agreement and the other Loan Documents to Class R Security the extent the Bank or its counsel may reasonably request, including, without limitation, the resolutions adopted by their respective boards of directors and/or shareholders to authorize the execution, delivery and performance of this Agreement of even date herewithand the other Loan Documents, in each case certified by their respective Secretaries or other authorized officers thereof;
(5v) UCC financing statements for an incumbency certificate containing the Collateral covered by this Agreementname, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office title and genuine signatures of each of the Companies is located)Borrower's Authorized Representatives;
(6vi) a UCC search report of a UCC filings search in the Office copies of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office Bylaws of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the ParentBorrowers certified by their respective Secretaries or other authorized officers thereof;
(7vii) The Custody Agreement duly executed by a certificate from the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles President or certificate of incorporation certified by the Secretary of State or comparable chief financial officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's Parent (or the Parent's, as the case may beA) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified certifying that as of the date of the making of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company extension of this Agreementcredit hereunder, the Senior Credit NotesParent has a consolidated Tangible Net Worth of at least $8,750,000 and (B) attaching copies of the unaudited interim balance sheet of the Parent as at August 31, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement1996, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's unaudited interim balance sheet and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers income statement of the Company executing this Agreementas at August 31, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company1996; and
(13viii) Copies evidence of an errors insurance required by Section 8.4 hereof together with the lender loss payable endorsements and omissions other items referenced therein; provided that evidence of insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members the Company with appropriate endorsements may be provided within ten (10) days of the Companies' industry, all in form and content reasonably satisfactory to the Agent.date hereof;
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, Bank shall have caused such Debt -- excluding only received the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.initial fees called for hereby;
Appears in 1 contract
Initial Advance. The obligations obligation of the Lenders to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lenders, on or before the date thereof of the following conditions precedent:
(a) The Credit Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lenders, in its their sole discretion:
(1) This A copy of this Agreement duly executed by all parties;parties hereto.
(2) The Senior Credit Notes, each notes duly executed by the Companies;Company.
(3) The Guaranty, A copy of the Collateral Agency Agreement duly executed by the Parent;all parties thereto.
(4) the 12/00 Amendment to Class R Security Agreement The Company's articles of even date herewith;
(5) UCC financing statements for the Collateral covered incorporation as certified by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation incorporation, bylaws certified by the Secretary of State or comparable officer corporate secretary of the State Company, or a Certificate of such company's the Company stating that there has been no change in either the articles of incorporation or bylaws since those delivered in connection with that certain Prior RFC Credit Agreement, and a copy certificates of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel good standing dated no less recently than 90 days prior to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);this Agreement.
(105) A copy resolution of the resolutions board of each directors of the Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(116) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, other Loan Documents and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Credit Agent and the Lenders shall be being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the Credit Agent);.
(127) An Officer's Certificate for each A favorable written opinion of counsel to the Company (or of separate counsel at the option of the Company), dated as of the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since substantially in the Statement Date in any form of EXHIBIT H attached hereto, addressed to the Credit Agent for the benefit of the Central Elements relative to Lenders.
(8) Uniform Commercial Code, tax lien and judgment searches of the appropriate public records for the Company; and, which searches shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Credit Agent or as permitted hereunder.
(139) Copies of an the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to the Credit Agent.
(10) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Credit Agent, showing compliance by the Company as of the date of this Agreement with the related provisions of Section 6.8 hereof.
(11) Executed financing statements in recordable form covering the Collateral and ready for filing in all jurisdictions required by the Credit Agent.
(12) Receipt by the Credit Agent of all Fees due on the date hereof, including but not limited to, Commitment Fees and document production fees, due the Credit Agent and the Lenders on or prior to the date of this Agreement.
(13) Evidence that all accounts necessary into which Advances will be funded have been established at the Funding Bank and receipt of a fully executed Funding Bank Agreement.
(14) An agreement among the Company, the Credit Agent and Fannie Mae, pursuant to which Fannie Mae agrees to send all cash proceeds of Mor▇▇▇▇▇ L▇▇▇s sold by the Company to Fannie Mae to the Cash Collateral Account.
(▇▇) Assumed Name Certificate dated no less recently than 90 days prior to the date of this Agreement for any assumed name used by the Company in the conduct of its business.
(b) All directors directors, officers and officers shareholders of any the Company, all shareholders of any Company and all Affiliates of any the Company or the Parent or of any Subsidiary of any of the CompaniesCompany, to whom or which to any of whom the Companies Company shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, which indebtedness has a term of more than 1 year or is in excess of $25,000 shall have caused subordinated such Debt -- excluding only indebtedness to the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this AgreementObligations, by executing and causing to be delivered to the Agent a Subordination Agreement substantially of Debt Agreement, in the form of Exhibit C EXHIBIT F hereto; and taking all other stepsthe Credit Agent shall have received an executed copy of any such Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Mortgage Com Inc)
Initial Advance. The obligations obligation of the Lenders to fund their respective Funding Shares of the initial make any Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Agent, on or before the date thereof, of the following conditions precedent, save and except that Agent may, at its sole option, waive any one or more of the following conditions prior to the Initial Advance but such waiver shall not prevent Agent from requiring compliance of such condition(s) prior to any subsequent Advance to the extent set forth in a supplemental agreement entered into between the Borrower and Agent:
(a) The Each of the Loan Documents shall have been duly executed and delivered by the respective parties thereto and, shall be in full force and effect and shall be in form and substance satisfactory to each of the Lenders.
(b) UCC, tax lien and judgment searches of the appropriate public records for the Borrower that do not disclose the existence of any prior Lien on the Collateral other than in favor of Agent or as permitted under this Agreement, or other than a Lien in favor of any Person which Lien shall be terminated in accordance with the provisions of this Agreement.
(c) Agent shall have received (or from the Borrower a copy, certified as of a recent date by the appropriate officer of the State in which such Person is organized to be satisfied that it will receive by true and complete, of the corporate charter and any other organization documents of such deadline Person as the Agent in effect on such date of certification. The Borrower shall specify) the following, all of which must be furnish evidence satisfactory in form and content to the Agent that they are each duly qualified and in good standing in each jurisdiction in which it owns or leases property or in which the conduct of its sole discretion:business requires it to so qualify, except where the failure to so qualify could not have a materially adverse effect on the business, assets, or financial condition of the Borrower.
(1d) This Agreement duly Agent shall have received from the Borrower financial statements of the Borrower (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 2006 (the "Statement Date") and related statements of income, changes in stockholders' equity and cash flows for the period ended on the Statement Date and a balance sheet as of March 31, 2007 ("Interim Date") and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Agent, together with an Officer Certificate prepared as of the Interim Date and executed by all parties;any officer of the Borrower.
(2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5e) UCC financing statements naming the Borrower as debtor and the Agent as secured party covering the Collateral shall have been duly recorded and filed to the satisfaction of Agent and its counsel.
(f) Agent shall have received evidence, in form, scope and substance and with such insurance carriers, satisfactory to the Agent, for all insurance policies required under any of the Loan Documents.
(g) There shall be no pending or threatened litigation involving the Borrower which, in the judgment of the Agent, could have a material adverse effect on such Person or the ability of the Borrower to perform its obligations under the Loan Documents to which it is a party, and no judgment, order, injunction or other similar injunction or other similar restraint prohibiting any of the transactions contemplated hereby shall exist.
(h) All action on the part of the Borrower necessary for the Collateral covered valid execution, delivery and performance by the Borrower of this AgreementAgreement and the other Loan Documents shall have been duly and effectively taken, and evidence thereof satisfactory to the Agent shall have been provided to the Agent. Agent shall have received from the Borrower true copies of resolutions adopted by the their respective boards of directors authorizing the transactions described herein, each certified by each of their secretaries as of a recent date to be true and complete.
(i) Agent shall have received from the Borrower an incumbency certificate, dated as of the Closing Date, signed by a duly executed by authorized officer of the CompaniesBorrower and giving the name and bearing a specimen signature of each individual who shall be an Authorized Representative: (a) to sign, for filing by the Agent in the office name and on behalf of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of such Person, each of the Companies Loan Documents to which such Person is located);or is to become a party; (b) with respect to the Borrower, to make requests for Advances; and (c) to give notices and to take other action on behalf of the Borrower under the Loan Documents.
(6j) Agent shall have received a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent Borrower, dated on or before the date as of the initial AdvanceClosing Date in form, scope, and substance satisfactory to the Agent, addressed to the Lenders Agent and the Agent and Lenders.
(k) Copies of the certificates, documents or other written instruments that evidence the Borrower's eligibility described in Section 5.11, together with copies of all seller/servicer contracts to which the Borrower is a party, all in form and substance reasonable satisfactory to Agent.
(l) Borrower shall have paid to the Agent all fees and its legal counsel (opinions expenses required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, Agreement and (ii) by the Parent of the Guaranty, respectively;other Loan Documents.
(11m) A certificate of each Company's Borrower shall have provided such additional instruments and the Guarantor's corporate secretary as documents to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until as the relevant Company or the Guarantor, as applicable, has furnished a new certificate to Agent and the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content counsel may have reasonably satisfactory to the Agentrequested.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)
Initial Advance. The obligations obligation of the Lenders to fund their respective Funding Shares of the initial make any Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Agent, on or before the date thereof, of the following conditions precedent:
(a) The Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Agent, in its sole discretion:
(1) This Agreement The Loan Documents dated as of the date hereof duly executed by all partiesthe Company;
(2) The Senior Credit Notes, each duly executed by Certified copies of the CompaniesCompany’s articles of incorporation and bylaws and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and a certification from the taxing authority of the state of incorporation stating that the Company is in good standing with said taxing authority;
(3) The Guaranty, duly executed A certificate of corporate resolutions by the Parentcorporate secretary of the Company in the form of Exhibit “J” attached hereto certifying the resolutions authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, and all other instruments or documents to be delivered by the Company pursuant to this Agreement;
(4) Financial statements of the 12/00 Amendment Company (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 2001 (the “Statement Date”) and related statements of income, changes in stockholders’ equity and cash flows for the period ended on the Statement Date and a balance sheet as of July 31, 2002 (“Interim Date”) and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to Class R Security Agreement the Agent, together with an Officer Certificate prepared as of even date herewiththe Interim Date and executed by the president or chief financial officer of the Company;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent Company, dated on or before the date as of the initial AdvanceClosing Date in form and substance satisfactory to the Agent, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);Lenders
(126) An Officer's Certificate for each Company dated the date A tax, lien and judgment search of the initial Advance and certifying thatappropriate public records for the Company, after giving effect to that Advanceincluding a search of Uniform Commercial Code financing statements, no Default or Event which search shall not have disclosed the existence of Default will exist under this Agreement and that there has been no material adverse change since any prior Lien on the Statement Date Collateral other than in any favor of the Central Elements relative to the CompanyAgent or as permitted hereunder; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Sirva Inc)
Initial Advance. The obligations of the Lenders Lender shall have no obligation to fund their respective Funding Shares of make the initial Advance under this Agreement are subject to the Companies' fulfillment of the following conditions precedent:
(a) The Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent in its sole discretion:
(1) This Agreement duly executed by all parties;
(2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent'sBorrower hereunder unless, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed each of the following conditions precedent shall be met to the Lenders reasonable satisfaction of Lender as provided below:
(a) All legal matters incident to the consummation of the transactions hereby contemplated shall be reasonably satisfactory to counsel for the Lender and to such local counsel as counsel for the Agent Lender may retain.
(b) There shall have been delivered to the Lender, fully completed and in form and substance reasonable duly executed (when applicable), the following, satisfactory to the Agent Lender and its legal counsel counsel:
(opinions required to be included therein are set forth in Exhibit G)i) This Agreement and the Note;
(10A) A a copy of the resolutions certificate or articles of each Company's and incorporation, including all amendments thereto, of the Parent's boards of directorsBorrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (B) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Effective Date and certifying (i) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the date hereof, and at all times since a date prior to the date of the initial Advance resolutions described in clause (ii) below, (ii) that attached thereto is a true and complete copy of resolutions duly adopted by the relevant Company's or Parent's corporate secretary, Board of Directors of the Borrower authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies borrowings hereunder, and that such resolutions have not been modified, rescinded, or amended and are in full force and effect, (iii) that the certificate or articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to this Agreementclause (A) above, and (iiiv) by as to the Parent of the Guaranty, respectively;
(11) A certificate incumbency and specimen signature of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company officer executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all Agreement or any other Facilities Papers executed or to be executed by or document delivered in connection herewith on behalf of the Company Borrower; (C) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (B) above; and (yD) such other documents as the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent)Lender may reasonably request;
(12iii) An Officera favorable written opinion from Borrower's Certificate general counsel, addressed to Lender, dated as of even date herewith, addressing such legal matters as the Lender or its counsel shall reasonably require.
(iv) satisfactory evidence that the Applicable Rating Level is Investment Grade or higher.
(v) true and correct copies of all certificates, authorizations and consents, evidencing all Government Approvals, necessary for each Company dated the date execution, delivery or performance by the Borrower of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the AgentNote.
(bvi) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any payment in full of the CompaniesBorrower's payment obligations to Lender under that certain Competitive Advance and Revolving Credit Facility Agreement dated October 27, to whom or which any of 2000 between Borrower and The Chase Manhattan Bank as Administrative Agent for certain Lenders (the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000"Chase Credit Facility") or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary complete release of Lender from its obligations under the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the AdvanceChase Credit Facility.
Appears in 1 contract
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof, of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement The Loan Documents dated as of the date hereof duly executed by all partiesthe Company;
(2) The Senior Credit Notes, each duly executed by Certified copies of the CompaniesCompany's articles of incorporation and bylaws and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and a certification from the taxing authority of the state of incorporation stating that the Company is in good standing with said taxing authority;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office An original resolution of the Secretary board of State directors of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(114) A certificate (in the form of each EXHIBIT "J") of the Company's and the Guarantor's corporate secretary as to (i) the resolution of the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the other Loan Documents and the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, other Loan Documents and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Lender being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentLender);
(125) An Officer's Certificate Financial statements of the Company (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of September 30, 1998 (the "Statement Date") and related statements of income, changes in stockholders' equity and cash flows for each Company the period ended on the Statement Date and a balance sheet as of December 31, 1998 ("Interim Date") and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Lender;
(6) A favorable written opinion of counsel to the Company, dated as of the date of this Agreement, to be in substantially the initial Advance form of EXHIBIT "M" hereto, and certifying thataddressed to the Lender;
(7) A tax, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement lien and that there has been no material adverse change since the Statement Date in any judgment search of the Central Elements relative appropriate public records for the Company, including a search of Uniform Commercial Code financing statements, which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder;
(8) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.11 hereof, all in form and substance satisfactory to the Company; andLender;
(139) Copies of an the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any CompanyLender, all shareholders of any showing compliance by the Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused Agreement with the related provisions of Section 6.8 hereof and showing Lender as an additional loss payee on such Debt -- excluding only policies;
(10) Executed financing statements in recordable form covering the debts Collateral and obligations described on Schedule 8.1(bready for filing in all jurisdictions required by the Lender;
(11) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to Evidence that the Agent a Subordination Agreement substantially in Funding Account has been established with the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the AdvanceLender.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (E Loan Inc)
Initial Advance. The obligations obligation of the Lenders Credit Agent to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of Credit Agent, of the following conditions precedent:
(a) The Credit Agent shall have received (or be satisfied that it will must receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Credit Agent, in its sole discretion:
(1) This Agreement The Notes and this Agreement, duly executed by all parties;Borrower.
(2) The Senior Credit NotesLennar Undertaking, each on the form prescribed by Lender, duly executed by the Companies;Lennar.
(3) The GuarantyAll certificates and instruments representing or evidencing the Pledged Shares, together with stock powers or other instruments of assignment, duly executed by the Parent;completed in blank
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the ParentUAMC's articles or certificate of incorporation incorporation, together with all amendments, as certified by the Secretary of State or comparable officer of the State of such companyFlorida; UAMC's incorporation and a copy of its bylaws bylaws, together with all amendments, certified by such Company's (or the Parent's, as the case may be) corporate secretary or assistant secretary;secretary of UAMC; and certificates of good standing dated within 60 days of the date of this Agreement.
(5) A resolution of the board of directors of UAMC authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMC under this Agreement.
(6) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMC executing this Agreement and the other Loan Documents, and of the officers and employees of UAMC delivering each Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Credit Agent being entitled to rely on that certificate until a new incumbency certificate has been furnished to Credit Agent).
(7) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by UAMC in the conduct of its business.
(8) EHMI's articles of incorporation, together with all amendments, as certified by the Secretary of State of Washington; EHMI's bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of EHMI; and certificates of good standing dated within 30 days of the date of this Agreement.
(9) A favorable written opinion resolution of counsel to the Companies board of directors of EHMI authorizing the execution, delivery and performance of this Agreement and the Parent dated on other Loan Documents, each Advance Request and all other agreements, instruments or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required documents to be included therein are set forth in Exhibit G);delivered by EHMI under this Agreement.
(10) A copy certificate as to the incumbency and authenticity of the resolutions signatures of each Company's the officers of EHMI executing this Agreement and the Parentother Loan Documents, and of the officers and employees of EHMI delivering each Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Credit Agent being entitled to rely on that certificate until a new incumbency certificate has been furnished to Credit Agent).
(11) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by EHMI in the conduct of its business.
(12) AFSI's boards articles of directorsincorporation, together with all amendments, as certified by the Secretary of State of California; AFSI's bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of AFSI; and certificates of good standing dated within 30 days of the date of this Agreement.
(13) A resolution of the board of directors of AFSI authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by AFSI under this Agreement.
(14) A certificate as to the incumbency and authenticity of the signatures of the officers of AFSI executing this Agreement and the other Loan Documents, and of the officers and employees of AFSI delivering each Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Credit Agent being entitled to rely on that certificate until a new incumbency certificate has been furnished to Credit Agent).
(15) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by AFSI in the conduct of its business.
(16) UAMCC's articles of incorporation, together with all amendments, as certified by the Secretary of State of California; UAMCC's bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of UAMCC; and certificates of good standing dated within 30 days of the date of this Agreement.
(17) A resolution of the board of directors of UAMCC authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMCC under this Agreement.
(18) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMCC executing this Agreement and the other Loan Documents, and of the officers and employees of UAMCC delivering each Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Credit Agent being entitled to rely on that certificate until a new incumbency certificate has been furnished to Credit Agent).
(19) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by UAMCC in the conduct of its business.
(20) UAMC Asset's articles of incorporation, together with all amendments, as certified by the Secretary of State of Nevada; UAMC Asset's bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of UAMC Asset; and certificates of good standing dated within 30 days of the date of this Agreement.
(21) A resolution of the board of directors of UAMC Asset authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Advance Request and all other agreements, instruments or documents to be delivered by UAMC Asset under this Agreement.
(22) A certificate as to the incumbency and authenticity of the signatures of the officers of UAMC Asset executing this Agreement and the other Loan Documents, and of the officers and employees of UAMC Asset delivering each Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Credit Agent being entitled to rely on that certificate until a new incumbency certificate has been furnished to Credit Agent).
(23) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by UAMC Asset in the conduct of its business.
(24) Lennar's articles or certificate of incorporation, together with all amendments, as certified by the Secretary of State of Florida, bylaws certified by the corporate secretary of Lennar and certificates of good standing dated within 30 days of the date of this Agreement.
(25) A resolution of the board of directors of Lennar, certified as of the date of the initial Advance Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementLennar Undertaking, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers agreements, instruments or documents to be delivered by the Companies pursuant to Lennar under this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(1126) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company Lennar executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance Lennar Undertaking and all other Facilities Papers executed agreements, instruments or documents to be executed by or on behalf of the Company and delivered under this Agreement (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be Lender being entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new incumbency certificate has been furnished to the AgentLender);.
(1227) An Officer's Certificate Financial statements of Lennar containing a balance sheet as of November 30, 2000, and related statements of income, changes in stockholders' equity and cash flows for the period ended on the that date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by independent certified public accountants of recognized standing acceptable to Lender.
(28) A favorable written opinion of counsel to each Company Borrower and Lennar, addressed to Lenders and dated as of the date of this Agreement, covering such matters as Credit Agent may reasonably request.
(29) Uniform Commercial Code, tax lien and judgment searches of the initial Advance and certifying that, after giving effect to appropriate public records for each Borrower that Advance, no Default do not disclose the existence of any prior Lien on the Collateral other than in favor of Credit Agent or Event of Default will exist as permitted under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; andAgreement.
(1330) Copies of an the certificates, documents or other written instruments that evidence each Borrower's eligibility described in Section 2.3, all in form and substance satisfactory to Credit Agent.
(31) Copies of each Borrower's errors and omissions insurance policy or mortgage impairment insurance policy policy, and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage showing compliance by each Borrower as is customary for members of the Companies' industrydate of this Agreement with the related provisions of Section 8.9.
(32) Executed financing statements in recordable form covering the Collateral and ready for filing in all jurisdictions required by Credit Agent.
(33) Receipt by Credit Agent and Lenders of any fees due on the date of this Agreement.
(34) An agreement among each Borrower that is selling Loans to ▇▇▇▇▇▇ ▇▇▇, Lender and ▇▇▇▇▇▇ Mae, pursuant to which ▇▇▇▇▇▇ ▇▇▇ agrees to send all in form and content reasonably satisfactory cash proceeds of Mortgage Loans sold by such Borrower to ▇▇▇▇▇▇ Mae to the AgentCash Collateral Account.
(35) An executed Funding Bank Agreement.
(36) An executed Electronic Tracking Agreement among Borrowers, Credit Agent and Mortgage Electronic Registration Systems, Inc. ("MERS"), and MERCORP, Inc., pursuant to which Credit Agent will have the authority to, among other things, withdraw Mortgages from the MERS system, if either the Mortgage Loan has been registered on the MERS system naming Borrower as servicer or subservicer, or the Mortgage Loan has not yet been registered on the MERS system.
(b) All directors and officers of If any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of Borrower is indebted to any of the Companiesits directors, to whom officers, shareholders or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more Affiliates, as of the date of this Agreement, shall which indebtedness is in excess of $35,000,000, the Person to whom that Borrower is indebted must have caused such executed a Subordination of Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in on the form prescribed by Credit Agent; and Credit Agent must have received an executed copy of Exhibit C and taking all other stepsthat Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection respective Borrower to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Lennar Corp /New/)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This The Notes and this Agreement duly executed by all parties;the Company.
(2) The Senior Credit Notes, each duly executed Company's articles of incorporation as certified by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation incorporation, bylaws certified by the Secretary of State or comparable officer corporate secretary of the State Company, or a Certificate of such company's the Company stating that there has been no change in either the articles of incorporation or bylaws since those delivered in connection with that certain Warehousing Credit and a copy Security Agreement dated April 15, 1992, and certificates of its bylaws certified by such Company's good standing dated no less recently than ninety (or the Parent's, as the case may be90) secretary or assistant secretary;
(9) A favorable written opinion of counsel days prior to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);this Agreement.
(103) A copy An original resolution of the resolutions board of each directors of the Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(114) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, other Loan Documents and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender). 148
(5) Financial statements of the Company (and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 1994, and related statements of income, changes in stockholders' equity and cash flows for the period ended on such date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by independent certified public accountants of recognized standing acceptable to the Lender.
(y6) the officers Financial statements of the Parent executing the GuarantyCompany (and, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as if applicable, has furnished its Subsidiaries, on a new certificate consolidated basis) containing a balance sheet as of June 30, 1995, related statements of income and changes in stockholders' equity for the period ended on such date prepared, except as disclosed on the financial statements, in accordance with GAAP applied on a basis consistent with the Company's most recent audited financial statements.
(7) A favorable written opinion of counsel to the Agent);
(12) An Officer's Certificate for each Company Company, dated as of the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement substantially in the form of Exhibit H attached hereto, addressed to the Lender.
(8) In the state of incorporation of the Company, a tax, lien and that judgment search of the appropriate public records for the Company, including a search of Uniform Commercial Code financing statements, which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder.
(9) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof or a certificate from the Company stating there has been no material adverse change in such eligibility since those delivered in connection with the Statement Date Original Agreement, all in any of the Central Elements relative form and substance satisfactory to the Company; andLender.
(1310) Copies of an Certificate from the Company stating its errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates policy are in lieu of policies, providing such insurance coverage compliance as is customary for members of the Companies' industry, all in form and content reasonably satisfactory date of this Agreement with the related provisions of Section 6.8 hereof. 149
(11) Executed amendments to the Agentfinancing statements in recordable form covering the Collateral and ready for filing in all jurisdictions required by the Lender.
(12) Receipt by the Lender of the Commitment Fee due on the date hereof, if any.
(13) Evidence that all accounts necessary into which Advances will be funded have been established at the Funding Bank and receipt of a fully executed Funding Bank Agreement.
(b) All directors directors, officers and officers shareholders of any the Company, all shareholders of any Company and all Affiliates of any the Company or the Parent or of any Subsidiary of any of the CompaniesCompany, to whom or which to any of whom the Companies Company shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused subordinated such Debt -- excluding only indebtedness to the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this AgreementObligations, by executing and causing to be delivered to the Agent a Subordination Agreement substantially of Debt Agreement, in the form of Exhibit C F hereto; provided, however, that earned salaries and taking all other stepsbonuses and expense reimbursements owed to officers of the Company shall be excluded from this requirement; and the Lender shall have received an executed copy of any such Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, true and complete and in full force and effect as of the date of the Advance. Unsecured indebtedness of the Company to its Affiliates for warehousing purposes and unclaimed bondholder funds held and administered by the Company for its Subsidiaries are not required to be subordinated under the terms of this Section.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (U S Home Corp /De/)
Initial Advance. The obligations of the Lenders As conditions precedent to fund their respective Funding Shares of Lender's obligation to make the initial Advance under this Agreement are subject to the Companies' fulfillment of the following conditions precedenthereunder:
(a) The Agent Borrower shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the followingdelivered to Lender, all of which must be satisfactory in form and content substance satisfactory to the Agent in its sole discretionLender:
(1i) This this Agreement duly executed signed by all partiesBorrower;
(2ii) The Senior Credit Notes, each duly executed the Commitment Letter signed by the CompaniesBorrower;
(3iii) The Guaranty, duly executed the Note signed by the ParentBorrower;
(4iv) a Guarantee signed by each Guarantor, if stipulated in the 12/00 Amendment to Class R Security Agreement of even date herewithCommitment Letter;
(5v) UCC financing statements for the Collateral covered a Power of Attorney signed by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located)Borrower;
(6vi) a UCC search report certified copy of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the ParentBorrower's articles or certificate of incorporation certified and bylaws (or corresponding organizational documents if Borrower is not a corporation) and a certificate of good standing issued by the Secretary appropriate official in Borrower's jurisdiction of State or comparable officer of organization, dated no less recently than one (1) month prior to the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretarydate hereof;
(9vii) A favorable written opinion a certificate of counsel Borrower's corporate secretary, substantially in the form of Exhibit H hereto, dated as of the Effective Date, as to the Companies incumbency and authenticity of the signatures of the officers of Borrower executing the Principal Agreements and the Parent resolutions of the board of directors of Borrower, substantially in the form of Exhibit I hereto;
(viii) independently audited financial statements of Borrower (and its Subsidiaries, on a consolidated basis) for each of the two (2) fiscal years most recently ended (if available), containing a balance sheet and related statements of income, stockholders' equity and cash flows, all prepared in accordance with GAAP, applied on a basis consistent with prior periods, and otherwise acceptable to Lender;
(ix) if more than six (6) months has passed since the close of the most recently ended fiscal year, interim financial statements of Borrower covering the period from the first day of the current fiscal year to the last day of the most recently ended month;
(x) financial statements of each of the Guarantors, signed by them, dated on or before no less recently than three (3) months prior to the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10xi) A copy copies of the resolutions of each CompanyBorrower's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, policy or certificates in lieu of insurance for such policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to Lender, showing compliance by Borrower with Section 9.10 below;
(xii) a subordination agreement, in form and substance satisfactory to Lender in its sole discretion, executed by each Guarantor and each Affiliate of Borrower that, as of the AgentEffective Date, is a creditor of Borrower; and
(xiii) the initial Commitment Fee.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, Borrower shall have caused such Debt -- excluding only executed and filed with the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debtappropriate governmental authorities, as defined in this Agreementdetermined by Lender, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form state of Exhibit C Borrower's principal place of business and taking all in the state of Borrower's organization and in such other stepsjurisdictions as may be required by Lender, if any, required Uniform Commercial Code Financial Statements (UCC-1) and/or such other instruments as may be necessary to cause such Debt to be Subordinated Debt, as so definedperfect the security interest of Lender in the Collateral, and the corporate secretary Borrower has provided satisfactory evidence of the relevant Company or the Parent such filing to Lender.
(as the case may bec) Lender shall have certified each such Subordination Agreement executed to satisfy the requirements satisfactorily completed its due diligence review of this Subsection to be trueBorrower's operations, complete business, financial condition and in full force underwriting and effect as origination of the date of the AdvanceMortgage Loans.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Fieldstone Investment Corp)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the --------------- initial Advance under this Agreement are hereunder is subject to the Companies' fulfillment satisfaction, as determined by the Lender in its sole discretion, of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement The Note duly executed by all partiesthe Company;
(2) The Senior Credit NotesA guaranty from each of the Guarantors (collectively, each duly executed by the Companies"Guaranty");
(3) The Guaranty, duly executed by Certified copies of the ParentCompany's articles of incorporation and bylaws and a certificate of good standing dated no less recently than one (1) month prior to the date hereof;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies Company and the Parent dated on or before the date each of the initial AdvanceGuarantors, addressed to the Lenders and the Agent and in form and substance reasonable content satisfactory to the Agent and Lender in its legal counsel (opinions required to be included therein are set forth in Exhibit G)sole discretion, dated as of the date hereof;
(105) A copy An original resolution of the resolutions board of each directors of the Company's and the Parent's boards of directors, certified as of the date of the initial Advance hereof by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the Note, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(116) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, Note and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Lender being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentLender);
(127) An Officer's Certificate Original independently audited financial statements of the Company (and its Subsidiaries, on a consolidated basis) for the most recent fiscal year end (the "Statement Date"), containing a balance sheet and related statements of income and retained earnings and changes in financial position for the period ended on the Statement Date, all prepared in accordance with GAAP, applied on a basis consistent with prior periods, and otherwise acceptable to the Lender;
(8) Financial statements of each Company of the Guarantors, signed by them, dated no less recently than three (3) months prior to the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and;
(139) Copies of an errors and omissions insurance policy the certificates, documents or mortgage impairment insurance policy and blanket bond coverage policyother written instruments which evidence the Company's eligibility described in Section 5.13 hereof, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, ------------ all in form and content reasonably substance satisfactory to the Agent.Lender;
(b10) All directors Copies Purchase Commitments with Investors which have sufficient availability, in Lender's sole discretion, together with and officers of any Companycertificates, all shareholders of any Company and all Affiliates of any Company documents or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.written instruments related thereto;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Preferred Credit Corp)
Initial Advance. The obligations effectiveness of the Lenders this Agreement, including Lender's obligation to fund their respective Funding Shares of make the initial Advance under this Agreement are Warehousing Advance, is subject to the Companies' fulfillment satisfaction, in the sole discretion of Lender, of the following conditions precedent:
(a) The Agent shall have received (or be satisfied that it will Lender must receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This The Warehousing Note and this Agreement duly executed by all parties;Borrower.
(2) The Senior Credit NotesABMSI's articles or certificate of incorporation, each duly executed together with all amendments, as certified by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the CompaniesNew Jersey, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed ABMSI's bylaws, together with all amendments, certified by the Companies and Chase as Custodian;
(8) Copies corporate secretary or assistant secretary of each Company's and the ParentABMSI, or a certificate of ABMSI stating that there has been no change in either ABMSI's articles or certificate of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that ABMSI is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(3) A resolution of the board of directors of ABMSI authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by ABMSI under this Agreement.
(4) A certificate as to the incumbency and authenticity of the signatures of the officers of ABMSI executing this Agreement and the other Loan Documents, and of the officers and employees of ABMSI delivering each Warehousing Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Lender being entitled to rely on that certificate until a new incumbency certificate has been furnished to Lender).
(5) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by ABMSI in the conduct of its business.
(6) HACI's articles or certificate of incorporation, together with all amendments, as certified by the Secretary of State or comparable officer of the State of such companyPennsylvania, HACI's incorporation and a copy of its bylaws bylaws, together with all amendments, certified by such Company's (or the Parent's, as the case may be) corporate secretary or assistant secretary;secretary of HACI, or a certificate of HACI stating that there has been no change in either HACI's articles or certificate of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that ABMSI is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(7) A resolution of the board of directors of HACI authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by HACI under this Agreement.
(8) A certificate as to the incumbency and authenticity of the signatures of the officers of HACI executing this Agreement and the other Loan Documents, and of the officers and employees of HACI delivering each Warehousing Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Lender being entitled to rely on that certificate until a new incumbency certificate has been furnished to Lender).
(9) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by HACI in the conduct of its business.
(10) ABCI's articles or certificate of incorporation, together with all amendments, as certified by the Secretary of State of Pennsylvania, ABCI's bylaws, together with all amendments, certified by the corporate secretary or assistant secretary of ABCI, or a certificate of ABCI stating that there has been no change in either ABCI's articles or certificate of incorporation or bylaws since those delivered in connection with the Existing Agreement, and certificates of good standing dated within 30 days of the date of this Agreement, together with a certification from the Franchise Tax Board or other state tax authority stating that ABMSI is in good standing with the Franchise Tax Board or such state tax authority, if applicable.
(11) A resolution of the board of directors of ABCI authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, each Warehousing Advance Request and all other agreements, instruments or documents to be delivered by ABCI under this Agreement.
(12) A certificate as to the incumbency and authenticity of the signatures of the officers of ABCI executing this Agreement and the other Loan Documents, and of the officers and employees of ABCI delivering each Warehousing Advance Request and all other agreements, instruments or documents to be delivered under this Agreement (Lender being entitled to rely on that certificate until a new incumbency certificate has been furnished to Lender).
(13) Assumed Name Certificates dated within 30 days of the date of this Agreement for any assumed name used by ABCI in the conduct of its business.
(14) A favorable written opinion of counsel to the Companies Borrower and the Parent dated on Guarantor (or before of separate counsel at the date option of Borrower and the initial AdvanceGuarantor), addressed to the Lenders Lender and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified dated as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, covering such matters as Lender may reasonably request, including the Senior Credit Notessubordination of Borrower's and Guarantor's debt securities offerings.
(15) Uniform Commercial Code, tax lien and judgment searches of the Custody Agreement and all appropriate public records for each Borrower that do not disclose the existence of any prior Lien on the Collateral other Facilities Papers to be delivered by the Companies pursuant to than in favor of Lender or as permitted under this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(1316) Copies of an each Borrower's errors and omissions insurance policy or mortgage impairment insurance policy policy, and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage showing compliance by each Borrower as is customary for members of the Companies' industrydate of this Agreement with the provisions of Section 7.9.
(17) Receipt by Lender of any fees due on the date of this Agreement.
(18) One or more agreements among Borrower, Lender and ▇▇▇▇▇▇ Mae in which ▇▇▇▇▇▇ ▇▇▇ agrees to send all cash proceeds of Mortgage Loans sold by Borrower to ▇▇▇▇▇▇ Mae to the Cash Collateral Account, each in form and content reasonably substance satisfactory to the AgentLender.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of If Borrower is indebted to any of its directors, officers, shareholders or Affiliates, or to the CompaniesGuarantor, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall which indebtedness has a term of more than 1 year or is in excess of $25,000, the Person to whom Borrower is indebted must, if such indebtedness is not already subordinated to the Obligations by its terms have caused such executed a Subordination of Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in on the form prescribed by Lender; and Lender must have received an executed copy of Exhibit C and taking all other stepsthat Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary or assistant secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection Borrower to be true, true and complete and in full force and effect as of the date of the Warehousing Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (American Business Financial Services Inc /De/)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof, of the following conditions precedent:
: (a) a0 The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement duly executed by all parties;
(2) 1 The Senior Credit Notes, each Loan Documents dated as of the date hereof duly executed by the CompaniesBorrowers;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office 2 Certified copies of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the ParentBorrower's articles or certificate of incorporation certified by the Secretary and bylaws and certificates of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's good standing dated no less recently than ninety (or the Parent's, as the case may be90) secretary or assistant secretary;
(9) A favorable written opinion of counsel days prior to the Companies and the Parent dated on or before the date of this Agreement and, with respect to each Borrower, a certification from the initial Advance, addressed to taxing authority of the Lenders and state of incorporation stating that the Agent and applicable Borrower is in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);good standing with said taxing authority:
(10) A copy 3 An original resolution of the resolutions board of directors of each Company's and the Parent's boards of directorsBorrower, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies such Borrower pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) 4 A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other stepsEXHIBIT "J-1" OR "J-2", if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified of each Borrower's corporate secretary as to the resolution of the board of directors of such Subordination Agreement executed to satisfy Borrower authorizing the requirements execution, delivery and performance of this Subsection Agreement and the other Loan Documents and the incumbency and authenticity of the signatures of the officers of such Borrower executing this Agreement and the other Loan Documents and each Advance Request and all other instruments or documents to be true, complete and in full force and effect as of delivered pursuant hereto (the date of Lender being entitled to rely thereon until a new such certificate has been furnished to the Advance.Lender);
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Hanover Capital Mortgage Holdings Inc)
Initial Advance. The obligations obligation of the Lenders Bank to fund their respective Funding Shares of the initial make any Advance under this Loan Agreement are for a Mortgage Loan is subject to the Companies' fulfillment Bank's receipt of the following conditions precedent:
(a) The Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be reasonably satisfactory in form and content to the Agent Bank, in its sole discretion:
(1) This Agreement duly executed by all parties;
(2a) The Senior Credit Notes, each Note duly executed by the CompaniesCompany;
(3b) The Guaranty, in the form attached hereto as Exhibit A, duly executed by the ParentGuarantor;
(4c) Executed Assignments of Notes and Mortgages in the 12/00 Amendment form attached hereto as Exhibit E, to Class R Security Agreement be recorded upon the occurrence of even date herewithany Event of Default hereunder or a mutually agreed upon electronic alternative thereto;
(5d) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office Certified copies of the Secretary Company's articles of State incorporation and bylaws, and certificates of existence delivered to the State Bank prior to the date of Pennsylvania (the State in which the chief executive office of each of the Companies is located)closing;
(6e) a UCC search report of a UCC filings search in the Office A resolution of the Secretary board of State directors of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the a date of prior to the initial Advance by the relevant Company's or Parent's corporate secretaryits Secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementLoan Agreement and the Note, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Loan Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11f) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Loan Agreement and the Senior Credit Notes, the Custody Agreement, Note and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Bank being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentBank);
(12g) An Officer's Certificate for each Company dated the date Audited financial statements of the initial Advance Company (and certifying thatits Subsidiaries, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement on a consolidated basis) prepared by a Certified Public Accountant in form and that there has been no material adverse change since the Statement Date in any of the Central Elements relative substance reasonably satisfactory to the Company; andBank, which shall include, but not be limited to, a statement of income for the period ending on December 31, 2003 (the "Statement Date");
(13h) Copies A certificate of an insurance evidencing the Company's errors and omissions insurance policy or mortgage impairment insurance policy in an amount of at least $500,000.00, each loss and blanket bond coverage policyaggregate;
(i) An executed, or certificates in lieu of policies, providing such insurance coverage as is customary for members original opinion of the Companies' industryCompany's counsel, all in form and content substance reasonably satisfactory acceptable to Bank, opining, among other things, as to the Agent.
(b) All directors enforceability of the Loan Agreement, the Note and officers of any the financing statements, against the Company, all shareholders of any Company and all Affiliates of any Company or as to the Parent or any Subsidiary of any enforceability of the Companies, to whom or which any of guaranties against the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.Guarantor; and
Appears in 1 contract
Sources: Warehouse Credit and Security Agreement (Community Bankshares Inc /Sc/)
Initial Advance. The obligations of Existing Revolving Credit Agreement and the Existing Term Loan Agreement shall not be deemed to be amended and restated as contemplated by this Agreement and the Lenders shall not be required to fund their respective Funding Shares of make the initial Advance under this Agreement are subject Advances hereunder or issue the initial Facility Letters of Credit hereunder, unless (i) the Borrower shall, prior to or concurrently with such initial Advances or issuance, have paid all fees due and payable to the Companies' fulfillment of Lenders, the following conditions precedentLead Arrangers and the Administrative Agent hereunder, and (ii) the Borrower shall have furnished to the Administrative Agent, the following:
(a) The Agent shall have received (or be satisfied that it will receive by such deadline as duly executed originals of the Agent shall specify) Loan Documents, including the following, all of which must be satisfactory in form and content Notes payable to the Agent in its sole discretion:
(1) This Agreement duly executed by all parties;
(2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office order of each of the Companies is located)Lenders, and this Agreement;
(6b) a UCC search report Certificates of a UCC filings search in good standing for the Office of Borrower and the Secretary of Guarantors, from the applicable State of formation, certified by the State of Pennsylvania appropriate governmental officer and dated not more than sixty (60) days prior to the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the ParentAgreement Effective Date;
(7c) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's the formation documents (including code of regulations, if appropriate) of the Borrower and the Parent's articles or certificate of incorporation Guarantors, certified by the Secretary of State or comparable an officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or REIT on behalf of the Company and REIT, together with all amendments thereto;
(yd) the officers Incumbency certificates, executed by an officer of the Parent executing Borrower and the GuarantyGuarantors, respectivelywhich shall identify by name and title the Persons authorized to sign the Loan Documents and to make borrowings hereunder on behalf of the Borrower, and (ii) upon which certificate the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Administrative Agent and the Lenders shall be entitled to rely on that certificate until informed of any change in writing by the relevant Company Borrower;
(e) Copies of resolutions of the board of directors, sole member or the Guarantorother governing body, as applicable, has furnished a new certificate of the Borrower and the Guarantors (and with respect to the Agentresolutions of the board of directors of the REIT certified by a Secretary or an Assistant Secretary of the REIT), authorizing the Advances provided for herein, with respect to the Borrower and the Guarantors, and the execution, delivery and performance of the Loan Documents to be executed and delivered by the Borrower and the Guarantors;
(f) A written opinion of the Borrower’s and Guarantors’ counsel and of the REIT’s special Maryland counsel, addressed to the Lenders in such form as the Administrative Agent may reasonably approve;
(g) A certificate, signed by an officer of the Borrower, stating that on the initial Borrowing Date (i) no Default or Unmatured Default has occurred and is continuing, (ii) all representations and warranties of the Borrower and the Guarantors are true and correct, (iii) neither the Borrower and the Guarantors nor the Unencumbered Pool Properties have suffered any material adverse changes since August 1, 2019, and (iv) no action, suit, investigation or proceeding, pending or threatened, exists in any court or before any arbitrator or Governmental Authority that purports to materially and adversely affect the Borrower or the Guarantors or any transaction contemplated hereby, or that could have a Material Adverse Effect on the Borrower or the Guarantors or any transaction contemplated hereby or on the ability of the Borrower or the Guarantors to perform their respective obligations under the Loan Documents, provided that such certificate is in fact true and correct;
(h) The most recent financial statements of the REIT;
(i) Written money transfer instructions addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(j) Evidence that all upfront fees due to each of the Lenders under the Fee Letter have been paid, or will be paid out of the proceeds of the initial Advance hereunder;
(k) A pro forma Compliance Certificate pursuant to Section 6.1(v);
(12l) An Officer's Certificate for each Company dated Evidence satisfactory to Administrative Agent of payment in full of all obligations under the date of Capital One Term Loan Agreements, or that such obligations shall be paid in full with the initial Advance and certifying that, after giving effect to that Advance, no Default or Event hereunder upon the effectiveness of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any Agreement;
(m) A certificate signed by an officer of the Central Elements relative Borrower, setting forth in reasonable detail the calculation of the Unencumbered Pool Value;
(n) All information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the CompanyPatriot Act, and a Beneficial Ownership Certification; and
(13o) Copies of an errors and omissions insurance policy Such other documents as any Lender or mortgage impairment insurance policy and blanket bond coverage policyits counsel may have reasonably requested, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content substance of which documents shall be reasonably satisfactory and customarily acceptable to the Agentparties and their respective counsel.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Credit Agreement (RPT Realty)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial --------------- Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion::()
(1) This The Notes and this Agreement duly executed by all parties;the Company.
(2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation as certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its Colorado, bylaws certified by such the corporate secretary of the Company's , or a Certificate of the Company stating that there has been no change in either the articles of incorporation or bylaws since those delivered in connection with the RFC Conduit Credit Agreement and certificates of good standing dated no less recently than ninety (or the Parent's, as the case may be90) secretary or assistant secretary;
(9) A favorable written opinion of counsel days prior to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);this Agreement.
(103) A copy resolution of the resolutions board of each directors of the Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(114) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, other Loan Documents and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender).
(5) Financial statements of the Company (and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 1994, and related statements of income, changes in stockholders' equity and cash flows for the period ended on such date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by independent certified public accountants of recognized standing acceptable to the Lender.
(y6) the officers Financial statements of the Parent executing the GuarantyCompany (and, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as if applicable, has furnished its Subsidiaries, on a new certificate consolidated basis) containing a balance sheet as of October 31, 1995, related statements of income and changes in stockholders' equity for the period ended on such date prepared in accordance with GAAP applied on a basis consistent with the Company's most recent audited financial statements.
(7) A favorable written opinion of counsel to the Agent);
(12) An Officer's Certificate for each Company Company, dated as of the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement substantially in the form of Exhibit ------- H attached hereto, addressed to the Lender. -
(8) A Uniform Commercial Code, tax lien and that there has been no material adverse change since the Statement Date in any judgment search of the Central Elements relative to appropriate public records for the Company; and, which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder.
(139) Copies of an the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to the Lender.
(10) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any CompanyLender, all shareholders of any showing compliance by the Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement with the related provisions of Section 6.8 hereof.
(11) Executed financing statements in recordable form covering the Collateral and ready for filing in all jurisdictions required by the Lender.
(12) Receipt by the Lender of any fees due on the date hereof, including, but not limited to, Commitment Fees and document production fees.
(13) Evidence that all accounts necessary into which Advances will be funded have been established at the Funding Bank and receipt of a fully executed Funding Bank Agreement, shall have caused such Debt -- excluding only the debts .
(14) A copy of an Acknowledgment Agreement from FNMA in form and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered substance satisfactory to the Agent a Subordination Agreement substantially Lender, acknowledging the validity of the Lender's security interest in the form of Exhibit C Servicing Contracts included in the Servicing Collateral, duly executed by the Company and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the AdvanceFNMA.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (National Mortgage Corp)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial --------------- Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof, of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement The Loan Documents dated as of the date hereof duly executed by all partiesthe Company;
(2) The Senior Credit Notes, each duly executed by Certified copies of the CompaniesCompany's articles of incorporation and bylaws and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and a certification from the taxing authority of the state of incorporation stating that the Company is in good standing with said taxing authority;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office An original resolution of the Secretary board of State directors of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(114) A certificate (in the form of each Exhibit "J") of the Company's and the Guarantor's ----------- corporate secretary as to (i) the resolution of the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the other Loan Documents and the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, other Loan Documents and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Lender being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentLender);
(125) An Officer's Certificate for each Company dated the date Financial statements of the initial Advance Company (and certifying thatits Subsidiaries, after giving effect to that Advanceon a consolidated basis) containing a balance sheet as of December 31, no Default or Event 1998 (the "Statement Date") and related statements of Default will exist under this Agreement income, changes in stockholders, equity and that there has been no material adverse change since cash flows for the period ended on the Statement Date and a balance sheet as of April 30, 1999 ("Interim Date") and related statement of income for the period ended on the Interim Date, all prepared in any accordance with GAAP applied on a basis consistent with prior periods and in the case of the Central Elements relative statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Company; andLender;
(137) A tax, lien and judgment search of the appropriate public records for the Company, including a search of Uniform Commercial Code financing statements, which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder;
(8) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.11 hereof, all in form and substance satisfactory to the Lender;
(9) Copies of an the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any CompanyLender, all shareholders of any showing compliance by the Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused Agreement with the related provisions of Section 6.8 hereof and showing Lender as an additional loss payee on such Debt -- excluding only policies;
(10) Executed financing statements in recordable form covering the debts Collateral and obligations described on Schedule 8.1(bready for filing in all jurisdictions required by the Lender;
(11) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to Evidence that the Agent a Subordination Agreement substantially in Funding Account has been established with the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the AdvanceLender.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Iown Holdings Inc)
Initial Advance. The obligations of At or prior to the Lenders to fund their respective Funding Shares making of the initial Advance under this Agreement are subject to the Companies' fulfillment extension of credit hereunder, the following conditions precedentprecedent shall also have been satisfied:
(a) The Agent the Bank shall have received the following (or and, with respect to all documents, each to be satisfied that it will receive by such deadline properly executed and completed) and the same shall have been approved as the Agent shall specify) the following, all of which must be satisfactory in to form and content to substance by the Agent in its sole discretionBank:
(1i) This Agreement duly executed by all partiesthis Agreement;
(2ii) The Senior Credit Notes, each duly executed by the CompaniesNote;
(3iii) The the Parent Guaranty, duly executed by the Parent;
(4iv) copies (executed or certified as may be appropriate) of resolutions of the 12/00 Amendment to Class R Security Agreement board of even date herewithdirectors or other governing body of the Borrower and the Parent authorizing the execution, delivery, and performance of the Loan Documents;
(5v) UCC financing statements for a certificate from the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office secretary or other officer of the Secretary of State Borrower and the Parent certifying and attaching the Organizational Documents of the State of Pennsylvania (Borrower and the State in which Parent and incumbency certificate with respect to the chief executive office of each Authorized Representatives of the Companies is located)Borrower and the Parent, and such Organizational Documents and incumbency certificate are in full force and effect;
(6A) audited financial statements of the Borrower (including balance sheets and statements of income) for the fiscal years ended December 31, 2023, December 31, 2022 and December 31, 2021 together with a UCC search report Focus‑Part 2 of the Borrower for such fiscal years and unaudited financial statements of the Borrower (including balance sheets and statements of income) for the fiscal quarters ended June 30, 2024, and March 31, 2024 together with a Focus‑Part 2 of the Borrower for such fiscal quarters;
(vii) good standing certificates for the Borrower and the Parent, dated as of a UCC filings search date no earlier than 30 days prior to the date hereof, from the appropriate governmental offices in the Office state of organization of the Secretary of State Borrower and the Parent, as applicable;
(viii) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and Anti-Money Laundering rules and regulations, including without limitation the USA PATRIOT Act; and the Bank shall have received a fully-executed Internal Revenue Service Form W-9 for the Borrower; and
(b) the Bank shall have received such valuations and certifications as it may require in order to satisfy itself as to the value of the State of Pennsylvania (Collateral, the State in which the chief executive office of each financial condition of the Companies is located) for each Borrower and the Parent, and the lack of material contingent liabilities of the Companies, ABFS 1998-2 Borrower and the Parent;
(7c) The Custody Agreement duly executed by legal matters incident to the Companies execution and Chase as Custodian;
(8) Copies delivery of each Company's the Loan Documents and to the transactions contemplated hereby shall be satisfactory to the Bank and its counsel and the Parent's articles or certificate of incorporation certified by Bank shall have received the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to for the Companies Borrower and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent Bank and its legal counsel (opinions required to be included therein are set forth in Exhibit G)counsel;
(10d) A copy the Bank shall have received financing statement, tax and judgment lien search results against the Property of the resolutions of each Company's Borrower and the Parent's boards Parent evidencing the absence of directors, certified Liens on its Property except as of the date of the initial Advance permitted by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectivelySection 8.8 hereof;
(11e) A certificate the Bank shall have received copies of each Company's all documents evidencing preferred equity and Subordinated Debt of the Borrower, which such documents shall be in form and substance satisfactory to the Bank;
(f) since December 31, 2023, no material adverse change in the business, condition (financial or otherwise), operations, performance, Properties or prospects of the Borrower and the Guarantor's corporate secretary as Parent shall have occurred;
(g) the Bank shall have received an upfront fee equal to 0.20% of the Commitment in effect on the Closing Date;
(h) the Bank shall have received all filings and recordations that are necessary to perfect the security interest of the Bank in the Collateral;
(i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures Bank shall be included in such certificate or set forth on an exhibit attached have received evidence satisfactory to it -- (that the Agent and the Lenders shall be entitled Borrower has directed NSCC to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate return NSCC Margin Deposits to the Agent);
(12) An Officer's Certificate for each Company dated Borrower by deposit into the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the CompanySettlement Account; and
(13j) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, Bank shall have caused received such Debt -- excluding only the debts other agreements, instruments, documents, certificates and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (opinions as the case Bank may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advancereasonably request.
Appears in 1 contract
Initial Advance. The obligations obligation of the Lenders Bank to fund their respective Funding Shares of make the --------------- initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Bank, on or before the date thereof of the following conditions precedent:
(a) The Agent Bank shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Bank, in its sole discretion:
(1) This Agreement duly executed by all parties;
(2) The Senior Credit NotesGuaranty, each duly executed by in the Companies;
(3) The Guarantyform attached hereto as Exhibit ------- "B", duly executed by the Parent;Guarantor; ---
(43) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office Certified copies of the Secretary Borrower's articles of State incorporation and bylaws, an Omnibus Certificate and certificates of the State of Pennsylvania (the State existence, good standing and qualification to do business in every jurisdiction in which the chief executive office such qualification is required of each of the Companies is located);
Borrower dated no less recently than three (63) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel months prior to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(105) A copy An original resolution of the resolutions board of each Company's and directors of the Parent's boards of directorsBorrower, certified as of the date of the initial Advance by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the Note, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Borrower pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(116) A certificate of each Company's and the GuarantorBorrower's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company Borrower executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, Note and each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Bank being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentBank);
(127) An Officer's Certificate for each Company dated the date A true, correct and complete copy of the initial Advance original independently audited financial statements of the Borrower (and certifying thatits Subsidiaries, after giving effect to that Advance, no Default or Event on a consolidated basis) for the most recent fiscal year end containing a balance sheet and related statements of Default will exist under this Agreement income and that there has been no material adverse change since retained earnings (the "Statement Date") and changes in financial position for the period -------------- ended on the Statement Date Date, all prepared in any of the Central Elements relative accordance with GAAP applied on a basis consistent with prior periods and acceptable to the CompanyBank and attached to a "Certificate Accompanying Financial Statements" in the form attached hereto as --------------------------------------------- Exhibit "I"; and-----------
(139) Five (5) original Acknowledgments in the form attached hereto as Exhibit "J" endorsed in blank; -----------
(10) Copies of an the Borrower's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any CompanyBank, all shareholders of any Company and all Affiliates of any Company or showing compliance by the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect Borrower as of the date of the Advance.initial Advance with the related provisions of Section 6.9 hereof; -----------
(11) Acknowledgment Agreement executed by Borrower and Bank and within thirty (30) days of the date hereof by FNMA;
Appears in 1 contract
Sources: Working Capital Line of Credit and Security Agreement (Homecapital Investment Corp)
Initial Advance. The obligations of the Lenders shall not be required to fund their respective Funding Shares of make the initial Advance under this Agreement are subject hereunder, or issue the initial Facility Letter of Credit hereunder, unless and until (a) the Borrower shall, prior to or concurrently therewith, have paid all fees due and payable to the Companies' fulfillment of Lenders and the following conditions precedentAdministrative Agent hereunder, and (b) the Borrower shall have furnished to the Administrative Agent the following:
(a) The Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent in its sole discretion:
(1) This Agreement duly executed by all parties;
originals of this Agreement (2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) with sufficient originals thereof for each of the CompaniesLenders), ABFS 1998-2 the Notes payable to each of the Lenders, the Guaranty, the Security Documents and any other additional Loan Documents, provided that Borrower may defer the effective date of the Collateral Assignment relating to the Pledged Equity Interests in the Partnership Interest Property known as Polaris Towne Center until the expiration of the advance notice period required under the Secured Indebtedness on such Partnership Interest Property, so long as Borrower has executed and delivered to the Administrative Agent in escrow an executed but undated version of such Collateral Assignment and the Parentcontributions of such Pledged Equity Interest to Collateral Pool LTV Amount and Adjusted Collateral Pool NOI shall be excluded until such Collateral Assignment has become effective;
(7A) The Custody Agreement duly executed Certificates of good standing for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property from their states of organization, certified by the Companies appropriate governmental officer and Chase as Custodiandated not more than sixty (60) days prior to the Agreement Effective Date, and (B) foreign qualification certificates for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property, certified by the appropriate governmental officer and dated not more than sixty (60) days prior to the Agreement Effective Date, for each jurisdiction in which the executive offices of a Loan Party is located and each jurisdiction in which a Mortgage Property or Partnership Interest Property owned by such Loan Party or other entity is located;
(8) c) Copies of the formation documents (including code of regulations, if appropriate) of the Loan Parties and each Company's and the Parent's articles entity directly or certificate of incorporation indirectly owning a Partnership Interest Property, certified by the Secretary of State or comparable an officer of the State of Borrower or such company's incorporation and a copy of its bylaws certified by such Company's (other Loan Party or the Parent'sentity, as the case may be) secretary or assistant secretaryappropriate, together with all amendments thereto;
(9d) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial AdvanceIncumbency certificates, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance executed by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing Loan Parties, which shall identify by name and title and bear the signature of the Persons authorized to sign this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance additional Loan Documents and all other Facilities Papers executed or to be executed by or make borrowings hereunder on behalf of such parties, upon which certificate the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Administrative Agent and the Lenders shall be entitled to rely on that certificate until informed of any change in writing by the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent)applicable Loan Party;
(12e) An Officer's Certificate for each Company dated the date Copies, certified by a Secretary or an Assistant Secretary of the initial Advance applicable Loan Party, of the Board of Directors’ resolutions (and certifying thatresolutions of other bodies, after giving effect if any are reasonably deemed necessary by counsel for the Administrative Agent) authorizing the Advances provided for herein, with respect to the Borrower, and the execution, delivery and performance of this Agreement and the additional Loan Documents to be executed and delivered by the applicable Loan Party;
(f) A written opinion of the Loan Parties’ counsel, addressed to the Lenders in substantially the form of Exhibit E hereto or such other form as the Administrative Agent may reasonably approve;
(g) A certificate, signed by an Authorized Officer of the Borrower, stating that Advance, on the Agreement Effective Date no Default or Event of Unmatured Default will exist under this Agreement has occurred and that is continuing, and there has been no material adverse change since the Statement Date in any Material Adverse Effect and that all representations and warranties of the Central Elements relative to the Company; and
(13) Copies of an errors Borrower are true and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates correct in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more material respects as of the date Agreement Effective Date, provided that such certificate is in fact true and correct;
(h) The most recent financial statements of this Agreement, shall have caused such Debt -- excluding only the debts Borrower and obligations described on Schedule 8.1(bthe Parent Entities;
(i) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered UCC financing statement searches with respect to the Borrower and each of the other Loan Parties from the state of its organization;
(j) Written money transfer instructions, addressed to the Administrative Agent a Subordination Agreement substantially and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(k) A pro forma compliance certificate in the form of Exhibit C A, utilizing the new covenants established herein and taking executed by the Borrower’s chief financial officer or chief operating officer;
(l) Evidence that all other stepsfees due to each of the Lenders with respect to this Agreement have been paid;
(m) Copies of a certified rent roll, leasing activity reports, tenant sales reports (if applicable), Major Leases, operating statements, title insurance commitments, surveys (which may be existing surveys accompanied by a certificate of no change from Borrower, if anyapplicable), required Appraisals for the Mortgage Properties dated not more than six (6) months prior to cause such Debt the Agreement Effective Date, a recent property condition report, flood zone determination (if not indicated on survey) and most recent engineering and “phase I” environmental assessments with respect to be Subordinated Debteach Mortgage Property, as so definedestoppel certificates and subordination, non-disturbance and attornment agreements for Major Leases with respect to each Mortgage Property (in a form reasonably satisfactory to the corporate secretary of Administrative Agent and to the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy extent available after reasonable collection efforts), together with insurance certificates satisfying the requirements of this Subsection Section 5.16 below, and such other due diligence materials as the Administrative Agent shall reasonably require for each such Mortgage Property or Partnership Interest Property, in addition to a written opinion of the Borrower’s counsel (or a designated local counsel in the jurisdiction of the Mortgage Property) addressed to the Lenders in a form reasonably satisfactory to the Administrative Agent regarding each Security Document;
(n) Evidence that each of the Mortgages has been recorded and the applicable title company has committed to issue a title insurance policy insuring such Mortgage in an amount and form, and with such coverages and endorsements, as are all reasonably satisfactory to the Administrative Agent;
(o) Evidence in the form of an escrow and related undertakings from a title insurance company satisfactory to the Administrative Agent that all Indebtedness secured by the initial Collateral Pool Properties immediately prior to the Agreement Effective Date shall be true, complete and repaid in full force and effect as from the proceeds of the date initial Advance hereunder.
(p) Evidence satisfactory of the Administrative Agent of payment in full of all amounts due to any lenders under the Original Credit Agreement which are not continuing as Lenders hereunder and of acceptance by them of the termination of their commitments thereunder.
(q) Such other documents as the Administrative Agent or its counsel may have reasonably requested, the form and substance of which documents shall be reasonably acceptable to the parties and their respective counsel. Upon satisfaction of the foregoing conditions precedent and the funding of the initial Advance, the Administrative Agent shall execute and deliver to Borrower a release of any security interests created pursuant to any “Collateral Assignments” not continuing in effect hereunder or the “Account Pledge Agreement” (as such terms are defined in the Original Credit Agreement) and terminations of any related UCC financing statements.
Appears in 1 contract
Initial Advance. The obligations obligation of the Lenders to fund their respective Funding Shares of the initial make any Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Agent, on or before the date thereof, of the following conditions precedent, save and except that Agent may, at its sole option, waive any one or more of the following conditions prior to the Initial Advance but such waiver shall not prevent Agent from requiring compliance of such condition(s) prior to any subsequent Advance to the extent set forth in a supplemental agreement entered into between the Borrower and Agent:
(a) The Each of the Loan Documents shall have been duly executed and delivered by the respective parties thereto and, shall be in full force and effect and shall be in form and substance satisfactory to each of the Lenders.
(b) UCC, tax lien and judgment searches of the appropriate public records for the Borrower that do not disclose the existence of any prior Lien on the Collateral other than in favor of Agent or as permitted under this Agreement, or other than a Lien in favor of any Person which Lien shall be terminated in accordance with the provisions of this Agreement.
(c) Agent shall have received (or from the Borrower a copy, certified as of a recent date by the appropriate officer of the State in which such Person is organized to be satisfied that it will receive by true and complete, of the corporate charter and any other organization documents of such deadline Person as the Agent in effect on such date of certification. The Borrower shall specify) the following, all of which must be furnish evidence satisfactory in form and content to the Agent that they are each duly qualified and in good standing in each jurisdiction in which it owns or leases property or in which the conduct of its sole discretion:business requires it to so qualify, except where the failure to so qualify could not have a materially adverse effect on the business, assets, or financial condition of the Borrower.
(1d) This Agreement duly Agent shall have received from the Borrower financial statements of the Borrower (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 2007 (the “Statement Date”) and related statements of income, changes in stockholders’ equity and cash flows for the period ended on the Statement Date and a balance sheet as of March 31, 2008 (“Interim Date”) and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Agent, together with an Officer Certificate prepared as of the Interim Date and executed by all parties;any officer of the Borrower.
(2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5e) UCC financing statements naming the Borrower as debtor and the Agent as secured party covering the Collateral shall have been duly recorded and filed to the satisfaction of Agent and its counsel.
(f) Agent shall have received evidence, in form, scope and substance and with such insurance carriers, satisfactory to the Agent, for all insurance policies required under any of the Loan Documents.
(g) There shall be no pending or threatened litigation involving the Borrower which could reasonably be expected to result in a Material Adverse Change, and no judgment, order, injunction or other similar injunction or other similar restraint prohibiting any of the transactions contemplated hereby shall exist.
(h) All action on the part of the Borrower necessary for the Collateral covered valid execution, delivery and performance by the Borrower of this AgreementAgreement and the other Loan Documents shall have been duly and effectively taken, and evidence thereof satisfactory to the Agent shall have been provided to the Agent. Agent shall have received from the Borrower true copies of resolutions adopted by the their respective boards of directors authorizing the transactions described herein, each certified by each of their secretaries as of a recent date to be true and complete.
(i) Agent shall have received from the Borrower an incumbency certificate, dated as of the Closing Date, signed by a duly executed by authorized officer of the CompaniesBorrower and giving the name and bearing a specimen signature of each individual who shall be an Authorized Representative: (a) to sign, for filing by the Agent in the office name and on behalf of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of such Person, each of the Companies Loan Documents to which such Person is located);or is to become a party; (b) with respect to the Borrower, to make requests for Advances; and (c) to give Notices and to take other action on behalf of the Borrower under the Loan Documents.
(6j) Agent shall have received a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent Borrower, dated on or before the date as of the initial AdvanceClosing Date in form, scope, and substance satisfactory to the Agent, addressed to the Lenders Agent and the Agent and Lenders.
(k) Copies of the certificates, documents or other written instruments that evidence the Borrower’s eligibility described in Section 5.11, together with copies of all seller/servicer contracts to which the Borrower is a party, all in form and substance reasonable satisfactory to Agent.
(l) Borrower shall have paid to the Agent all fees and its legal counsel (opinions expenses required pursuant to be included therein are set forth in Exhibit G);this Agreement and the other Loan Documents.
(10m) A copy The Agent shall be satisfied that (i) the Borrower has obtained all material and appropriate authorizations and approvals of all governmental authorities (including, without limitation, any approvals required by any of F▇▇▇▇▇ M▇▇, FHA, F▇▇▇▇▇▇ Mac, G▇▇▇▇▇ M▇▇, HUD), required for the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the due execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this AgreementBorrower of each of the Loan Documents and for the perfection of or the exercise by the Agent and each Lender of their respective rights and remedies under the Loan Documents, and (ii) by all transactions contemplated hereby shall be in material compliance with, and the Parent of the GuarantyBorrower shall have obtained all material and appropriate approvals pertaining to, respectively;all applicable laws, rules, regulations and orders, including, without limitation, all governmental, environmental, ERISA, retiree health benefits, workers’ compensation and other requirements, regulations and laws and shall not contravene any charter, by-law, debt instrument or other material contact or agreement to which Borrower is a party.
(11n) A certificate of each Company's No Material Adverse Change shall have occurred since the Statement Date and the Guarantor's corporate secretary as Interim Date.
(o) Borrower shall have provided such additional instruments and documents to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until as the relevant Company or the Guarantor, as applicable, has furnished a new certificate to Agent and the Agent);
(12) An Officer's Certificate for each Company dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content ’s counsel may have reasonably satisfactory to the Agentrequested.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)
Initial Advance. The obligations obligation of the Lenders Lender to fund their respective Funding Shares of make the initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Lender, on or before the date thereof of the following conditions precedent:
(a) The Agent Lender shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Lender, in its sole discretion:
(1) This Agreement duly executed by all parties;the Company.
(2) The Senior Credit Notes, each duly executed Company's articles of incorporation as certified by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation incorporation, bylaws certified by the Secretary of State or comparable officer corporate secretary of the State Company, and certificates of such company's incorporation and a copy of its bylaws certified by such Company's good standing dated no less recently than ninety (or the Parent's, as the case may be90) secretary or assistant secretary;
(9) A favorable written opinion of counsel days prior to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);this Agreement.
(103) A copy resolution of the resolutions board of each directors of the Company's and the Parent's boards of directors, certified as of the date of the initial Advance this Agreement by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the other Loan Documents, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;.
(114) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreementother Loan Documents and each Note delivered in connection with an Advance Request, each applicable Advance Request for Advance and all other Facilities Papers executed instruments or documents to be executed delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender).
(5) Financial statements of the Parent (and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 1994 and related statements of income, changes in stockholders' equity and cash flows for the period ended on such date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by or on behalf independent certified public accountants of recognized standing acceptable to the Lender.
(6) Financial statements of the Company (and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of April 30, 1994, related statements of income and changes in stockholders' equity for the period ended on such date prepared in accordance with GAAP applied on a basis consistent with the Company's most recent audited financial statements.
(y7) the officers A tax, lien and judgment search of the Parent executing appropriate public records for the GuarantyCompany, respectivelyincluding a search of Uniform Commercial Code financing statements, and which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder.
(ii) 8) A favorable written opinion of the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate general counsel to the Agent);
(12) An Officer's Certificate for each Company Company, dated as of the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since substantially in the Statement Date in any form of the Central Elements relative Exhibit H attached hereto, addressed to the Company; andLender.
(139) Copies of an the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to the Lender.
(10) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy policy, and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the AgentLender, showing compliance by the Company as of the date of this Agreement with the related provisions of Section 6.7 hereof.
(11) Executed financing statements in recordable form covering the Collateral and ready for filing in all jurisdictions required by the Lender.
(12) Evidence that all accounts necessary into which Advances will be funded have been established at the Funding Bank and receipt of a fully executed Funding Bank Agreement.
(b) All directors directors, officers and officers shareholders of any the Company, all shareholders of any Company and all Affiliates of any the Company or the Parent or of any Subsidiary of any of the CompaniesCompany, to whom or which to any of whom the Companies Company shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused subordinated such Debt -- excluding only indebtedness to the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this AgreementObligations, by executing and causing to be delivered to the Agent a Subordination Agreement substantially of Debt Agreement, in the form of Exhibit C F hereto; and taking all other stepsthe Lender shall have received an executed copy of any such Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Amresco Inc)
Initial Advance. The obligations of At or prior to the Lenders to fund their respective Funding Shares making of the initial Advance under this Agreement are subject to the Companies' fulfillment extension of credit hereunder, the following conditions precedentprecedent shall also have been satisfied:
(a) The the Agent shall have received the following for the account of the Lenders (or each to be satisfied that it will receive by such deadline properly executed and completed) and the same shall have been approved as the Agent shall specify) the following, all of which must be satisfactory in to form and content to substance by the Agent in its sole discretionAgent:
(1i) This Agreement duly executed by all partiesthe A Notes;
(2) The Senior Credit Notes, each duly executed by the Companies;
(3) The Guaranty, duly executed by the Parent;
(4ii) the 12/00 Amendment to Class R Security Agreement of even date herewith;
Guaranties (5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is locatedif any);
(6iii) a UCC search report certified copies of a UCC filings search in the Office resolutions of the Secretary Board of State Directors of the State Company and each Guarantor authorizing the execution and delivery of Pennsylvania (this Agreement, the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 Notes and the ParentGuaranties, as appropriate;
(7iv) The Custody Agreement duly executed by copies of the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation and by-laws of the Company and each Guarantor certified by the Secretary of State or comparable other appropriate officer of the State of Company or such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent'sGuarantor, as the case may be) secretary or assistant secretary;; and
(9v) A an incumbency certificate containing the name, title and genuine signatures of each of the Company's Authorized Representatives.
(b) legal matters incident to the execution and delivery of this Agreement and the other Loan Documents and to the transactions contemplated hereby shall be reasonably satisfactory to each Lender and its counsel; and the Agent shall have received for the account of the Lenders the favorable written opinion of counsel to for the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and Company in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in as Exhibit G)7.2(c) hereof;
(10c) A copy the Agent shall have received for the account of the resolutions of each Company's and Lenders a good standing certificate for the Parent's boards of directors, certified Company (dated as of the date no earlier than thirty (30) days prior to the date hereof) from the office of the initial Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company secretaries of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent state of the Guaranty, respectivelystates of Illinois and Iowa;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (id) the incumbency of (x) Agent shall have received for the officers account of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such Lenders a good standing certificate or set forth on an exhibit attached to it -- (the Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(12) An Officer's Certificate for each Company Guarantor (dated the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(13) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(bno earlier than thirty (30) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered days prior to the Agent a Subordination Agreement substantially in date hereof) from the form office of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the state in which such Guarantor was incorporated or formed;
(e) The proceeds of such initial credit shall be used to pay in full all outstanding "Obligations" under the Existing Credit Agreement except to the extent such "Obligations" constitute a "LIBOR Portions," in which event such "Obligations" shall be deemed A Loans made by the same Lender hereunder evidenced by the relevant A Notes issued to such Lender, with interest on each such "LIBOR Portion" to be due and payable at the end of the "Interest Period" applicable thereto at the time such "LIBOR Portion" becomes evidenced by the A Notes and the interest applicable to each such "LIBOR Portion" to continue at the rate which would otherwise applicable thereto under the Existing Credit Agreement (except that the "Applicable Margin" under the Existing Credit Agreement shall be deemed the Applicable Margin hereunder). The Lenders and the Company or agree that concurrently with such initial credit, the Parent Existing Credit Agreement shall terminate and all "Obligations" outstanding thereunder (as the case may beexcept for such "LIBOR Portions") shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete due and in full force and effect as of the date of the Advance.payable; and
Appears in 1 contract
Initial Advance. The obligations of At or prior to the Lenders to fund their respective Funding Shares time of the initial Advance Borrowing under this Agreement are subject to the Companies' fulfillment Revolving Credit or the issuance of the initial Letter of Credit, the following conditions precedentprecedent shall also have been satisfied:
(a) The Administrative Agent shall have received the following for the account of the Lenders (or each to be satisfied that it will receive by such deadline properly executed and completed) and the same shall have been approved as the Agent shall specify) the following, all of which must be satisfactory in to form and content to substance by the Agent in its sole discretionLenders:
(1i) This Agreement duly executed by all partiesthis Agreement;
(2ii) The Senior Credit the Notes, each duly executed by the Companies;
(3iii) The Guaranty, duly copies (executed by the Parent;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is locatedor certified as may be appropriate) for each Lender of the CompaniesArticles of Incorporation and By-laws of the Company and each Guarantor and of all legal documents or proceedings taken in connection with the execution and delivery of the Loan Documents to the extent the Administrative Agent or its counsel may reasonably request, ABFS 1998-2 and including, without limitation, resolutions of the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies Board of Directors of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and the Parent dated on or before the date of the initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the resolutions of each Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's corporate secretary, corporation authorizing the execution, delivery and performance (i) by each Company of this Agreement, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(11) A certificate of each Company's and the Guarantor's corporate secretary as to (i) the incumbency of (x) the officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or Loan Documents to be executed by it and certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document and request extensions of credit hereunder; and
(iv) the Administrative Agent shall have received evidence that the Company shall have received a ▇▇▇▇▇'▇ Rating of Baa3 or on behalf higher or an S&P Rating of BBB- or higher.
(b) The Administrative Agent shall have received good standing certificates for the Company and (y) each Guarantor from the officers office of the Parent executing Secretary of the GuarantyState in the state of its incorporation dated as of a date no later than 30 days prior to the date hereof;
(c) The Administrative Agent shall have received for the account of itself and the Lead Arrangers, respectivelyBook Managers, and Syndication Agents and Documentation Agent the fees referred to in Sections 4.3 and 4.4 hereof;
(iid) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- (the The Administrative Agent and the Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate have received such information and agreements relating to the Company's purchase of the Acquired Assets as they may reasonably request, including, without limitation, copies of all indemnity agreements being entered into in favor of the Company and relating to the Seller's and/or British Nuclear Fuels PLC's indemnification of the Company and its Subsidiaries for environmental, pension and nuclear fuel related liabilities, and the same shall be in form and substance satisfactory to the Administrative Agent);
(12e) An Officer's Certificate The Administrative Agent have received pro forma financial projections for each Company dated the next five years satisfactory in form and substance to the Administrative Agent;
(f) The Prior Credit Agreement shall have been terminated and all amounts payable thereunder shall be paid in full or otherwise provided for on or prior to the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Companyhereof; and
(13g) Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary The Administrative Agent shall have received for members the account of the Companies' industryLenders such other agreements, all in form instruments, documents, certificates and content reasonably satisfactory to opinions as the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company Administrative Agent or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the AdvanceRequired Lenders make reasonably request.
Appears in 1 contract
Initial Advance. The obligations obligation of the Lenders Bank to fund their respective Funding Shares of make the --------------- initial Advance under this Agreement are is subject to the Companies' fulfillment satisfaction, in the sole discretion of the Bank, on or before the date thereof of the following conditions precedent:
(a) The Agent Bank shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent Bank, in its sole discretion:
(1) This Agreement The Note duly executed by all partiesthe Company;
(2) The Senior Credit NotesGuaranty, each in the form attached hereto as Exhibit B, duly executed --------- by each of the CompaniesGuarantors;
(3) The GuarantyCertified copies of the Company's articles of incorporation and bylaws, duly executed by and certificates of good standing dated no less recently than three (3) months prior to the Parentdate of the initial Advance;
(4) the 12/00 Amendment to Class R Security Agreement of even date herewith;
(5) UCC financing statements for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in the office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(6) a UCC search report of a UCC filings search in the Office of the Secretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(7) The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate of incorporation certified by the Secretary of State or comparable officer of the State of such company's incorporation and a copy of its bylaws certified by such Company's (or the Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies Company and each of the Guarantors (or of separate counsel at the option of the Company and the Parent Guarantors) in form and content satisfactory to the Bank, dated on as of, or before prior to, the date of the initial Advance, addressed to the Lenders and Bank, substantially in the Agent and in form and substance reasonable satisfactory to the Agent and its legal counsel (opinions required to be included therein are set forth in attached hereto as Exhibit G);I. ---------
(105) A copy An original resolution of the resolutions board of each directors of the Company's and the Parent's boards of directors, certified as of the date of the initial Advance by the relevant Company's or Parent's its corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this AgreementAgreement and the Note, the Senior Credit Notes, the Custody Agreement and all other Facilities Papers instruments or documents to be delivered by the Companies Company pursuant to this Agreement, and (ii) by the Parent of the Guaranty, respectively;
(116) A certificate of each the Company's and the Guarantor's corporate secretary as to (i) the incumbency and authenticity of (x) the signatures of the officers of the Company executing this Agreement, Agreement and the Senior Credit Notes, the Custody Agreement, Note and each applicable Advance Request for Advance and all other Facilities Papers executed instrument or document to be executed by or on behalf of the Company and (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it -- delivered pursuant hereto (the Agent and the Lenders shall be Bank being entitled to rely on that certificate thereon until the relevant Company or the Guarantor, as applicable, has furnished a new such certificate has been furnished to the AgentBank);
(127) An Officer's Certificate Original independently audited financial statements of the Company (and its Subsidiaries, on a consolidated basis) for the most recent fiscal year end containing a balance sheet and related statements of income and retained earnings (the "Statement Date") and changes in financial position for the period entered on the Statement Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and acceptable to the Bank;
(8) Financial statements of each Company of the Guarantors, signed by them, dated no less recently than three (3) months prior to the date of the initial Advance and certifying that, after giving effect to that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and;
(139) Copies of an the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to the Bank;
(10) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.Bank, showing compliance by the Company as of the date of the initial Advance with the related provisions of Section 6.8 hereof; and
(b) All directors and officers At the sole discretion of the Bank, the Bank may require any director, officer or shareholder of the Company, all shareholders of any Company and all Affiliates of any the Company or the Parent or of any Subsidiary of any the Company, and each of the CompaniesGuarantors, to whom or which to any of whom the Companies Company shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have caused such to execute a Subordination of Debt -- excluding only the debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C F hereto; and taking all other steps--------- the Bank shall have received an executed copy of said Subordination of Debt Agreement, if any, required to cause such Debt to be Subordinated Debt, as so defined, and certified by the corporate secretary of the relevant Company or the Parent (as the case may be) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, true and complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Preferred Credit Corp)