Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the making of each Advance to the Borrower as provided for under this Loan Agreement is subject to the following further conditions precedent both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof: (a) no Default or Event of Default shall have occurred and be continuing; (b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be in form and substance acceptable to the Lender in its sole, reasonable discretion; (c) the aggregate principal amount of the Advances funded hereunder shall not exceed the Maximum Loan Amount; (d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 hereof, the Lender shall have completed its due diligence review of such documents, records, agreements, instruments, mortgaged properties or information relating to such Advance as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion; (e) the Lender shall have received a Notice of Borrowing and all other documents required under Section 2.03; (f) the Lender shall have received the following documents, each of which shall be satisfactory to the Lender in form and substance:
Appears in 2 contracts
Sources: Loan Agreement (Chrysler Group LLC), Loan Agreement (Chrysler Group LLC)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to (including any Advance on or after the Borrower as provided for under this Loan Agreement Effective Date) is subject to the satisfaction of the following further conditions precedent both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereofprecedent:
(a) no Default or No Cash Sweep Period, Event of Default, Default under either Section 8(a) or (b) or any other material Default not reasonably susceptible to cure within the applicable cure period shall have occurred and be continuing;.
(b) both immediately prior Borrower shall have certified to Administrative Agent in writing the making acquisition cost of such Advance and also after giving effect thereto and to the intended use thereofrelated Eligible Assets (including therein reasonable supporting documentation required by Administrative Agent, the if any);
(c) The representations and warranties made by each Loan Party in Section 6 hereof, hereof and by each Loan Party in each of the other Loan Documents, Documents shall be true and complete correct on and as of the date of the making of such Advance in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At .
(d) The Outstanding Principal Amount shall not, after giving effect to such Advance, exceed the request lesser of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the Borrower certifying as to the truth Borrowing Base and accuracy of the above, which certificate shall be in form and substance acceptable to the Lender in its sole, reasonable discretion;
(c) the aggregate principal amount of the Advances funded hereunder shall not exceed the Maximum Loan Amount;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 hereof, the Lender shall have completed its due diligence review of such documents, records, agreements, instruments, mortgaged properties or information relating to such Advance as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;.
(e) the Lender Custodian shall have received issued an Eligible Asset File Receipt applicable to the Eligible Assets with respect to which a Notice transfer of Borrowing and all other documents required under Section 2.03;funds has been proposed.
(f) With respect to each Eligible Asset included in the Lender Borrowing Base that is subject to a security interest (including any precautionary security interest) immediately prior to the Funding Date, Administrative Agent shall have received documentation reasonably acceptable to Administrative Agent evidencing the release of the security interest for such Eligible Asset that is duly executed by the related secured party and the related Borrower;
(g) With respect to the initial Advance, to extent invoiced at least two Business Days prior to the Effective Date, all reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees and expenses) of each Agent.
(h) Except to the extent waived by Administrative Agent in its sole discretion, Borrower shall deliver or cause to be delivered on or prior to the related Funding Date, the following documents, each of which shall be satisfactory items to the Lender extent applicable,
(i) to the Custodian, with respect to each Eligible Asset which is (or shall in the future be) represented by a physical certificate (including those issued electronically under the applicable state law) and is not in book entry form, the original physical certificate (or a statutorily authorized duplicate if the original certificate is lost or destroyed) issued in the name of the Designated Title Holder, together with a receipt, list or other document (which may be a photocopy or facsimile) issued by the applicable taxing authority indicating that the Designated Title Holder is the record holder on such taxing authority’s record of Tax Liens sold; provided, that, notwithstanding the foregoing, for purposes of the determination of whether an Eligible Asset File is sufficiently complete such that a Funding Date, as applicable, may occur, in jurisdictions in which an Eligible Asset shall in the future be represented by a physical certificate, a Funding Date, as applicable, may occur following the delivery to the Custodian of an initial receipt from the applicable taxing authority with sufficient information for the Custodian to verify ownership of such Eligible Asset in the name of the Designated Title Holder which initial receipt will be supplemented in the future by the delivery of the physical certificate; and
(ii) to the Custodian, with respect to each Eligible Asset that is a tax certificate or tax deed (including those issued electronically under the applicable state law) in book entry form (and substance:not represented by a physical certificate), the receipt, list or other document (which may be a photocopy or facsimile) issued by the applicable taxing authority of the state indicating that the Designated Title Holder is the record holder on such taxing authority’s record of Tax Liens sold. Each request for a borrowing by Borrower hereunder shall constitute a certification by Borrower that all of the conditions precedent set forth in this Section 5.02 have been satisfied in full.
Appears in 2 contracts
Sources: Loan and Security Agreement (Fortress Credit Realty Income Trust), Loan and Security Agreement (Fortress Credit Realty Income Trust)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement Borrowers (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuingcontinuing or would be created by the making of such Advance;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrowers in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.24 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the applicable Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) The Pledged Securities shall have been delivered to Lender or its agent and registered in the name of the Lender or with all necessary documents to re-register such Pledged Securities in the name of the Lender;
(d) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(de) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 10.16 hereof, the Lender shall have completed its due diligence review view of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances and the Borrowers as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(ef) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(fg) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each of which case dated such Business Day and duly completed;
(h) if any Mortgage Loans to be pledged hereunder were acquired by the Borrowers, such Mortgage Loans shall be satisfactory conform to the Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(i) the Lender shall have received all information requested from the Borrowers relating to Interest Rate Protection Agreements pursuant to Section 7.24, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrowers from interest rate fluctuations;
(j) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the applicable Borrower, with the related Servicing Agreement (as defined in Section 10.15(c)) attached thereto, which such Servicing Agreement shall be in form and substance:substance acceptable to Lender;
(k) the following documents shall have been delivered to the Lender with respect to the Pledged Securities: (i) the original documents described in Sections 4.01(e) and (f) hereof, (ii) a copy of the executed Pooling and Servicing Agreement governing the Pledged Securities and/or any supplements thereto, each certified by Aames Capital or the Trustee or master servicer under such Pooling and Servicing Agreement as a true, correct and complete copy of the original, and all ancillary documents required to be delivered to the certificateholders under such Pooling and Servicing Agreement, and (iii) copies of distribution statements delivered by the Trustee for two months prior to the month in which the related Request for Borrowing is made, if any, certified by the applicable servicer or master servicer as true and correct; and
(l) with respect to making any Tranche A Advances or Tranche C Advances, if at any time after the Effective Date, either Borrower shall have materially amended or modified its Underwriting Guidelines, such Borrower shall have delivered to the Lender a complete copy of such amended or modified Underwriting Guidelines and the Lender shall have consented in writing to such material amendment or modification. Each request for a borrowing by either Borrower hereunder shall constitute a certification by such Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing). Notwithstanding any other terms and conditions of this Warehouse Agreement, Aames Funding shall not be required to satisfy any conditions precedent other than those provided in Section 5.01(a), 5.01(b)(i) and 5.01(b)(ii) until such date as Aames Funding shall request an Advance hereunder, at which time it shall be a condition precedent to the Lender making such Advance that Aames Funding shall have satisfied all conditions provided herein.
Appears in 2 contracts
Sources: Warehouse Loan and Security Agreement (Aames Financial Corp/De), Warehouse Loan and Security Agreement (Aames Financial Corp/De)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the making of each Advance to the Borrower as provided for under this Loan Agreement is subject to the following further conditions precedent both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a ▇ Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be in form and substance acceptable to the Lender in its sole, reasonable discretion;
(c) the aggregate principal amount of the Advances funded hereunder shall not exceed the Maximum Loan Amount;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 hereof, the Lender shall have completed its due diligence review of such documents, records, agreements, instruments, mortgaged properties or information relating to such Advance as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;; substance:
(e) the Lender shall have received a Notice of Borrowing and all other documents required under Section 2.03;
(f) the Lender shall have received the following documents, each of which shall be satisfactory to the Lender in form and
(i) Notes. The original Notes, duly completed and substance:executed; and
Appears in 1 contract
Sources: Loan Agreement
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to you (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the satisfaction of the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each you in the Loan Party in Section 6 hereofand Security Agreement and SCHEDULE 4 thereto, and by each Loan Party elsewhere in each of the any other Loan Documentsdocument related thereto, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 20(q) and SCHEDULE 4, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender We shall have received an officer’s 's certificate signed by a one of your Responsible Officer of the Borrower Officers certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that you are in form compliance in all material respects with all governmental licenses and substance acceptable authorizations and are qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s our right to perform one or more Due Diligence Reviews pursuant to Section 10.15 hereof35 of the Loan and Security Agreement, the Lender we shall have completed its our due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender we, in its reasonable discretion deems our sole discretion, deem appropriate to review and such review shall be satisfactory to the Lender us in its reasonable our sole discretion;
(e) the Lender we shall have received from the Custodian a Notice Trust Receipt with exceptions as are acceptable to us in our sole discretion in respect of Borrowing Eligible Assets to be pledged hereunder on such Business Day and all other documents required under Section 2.03a Collateral Schedule and Exception Report, in each case dated such Business Day and duly completed;
(f) the Lender we shall have received from you a Warehouse Lender's Release Letter substantially in the form of EXHIBIT G-2 hereto (or such other form acceptable to us) or a Borrower's Release Letter substantially in the form of EXHIBIT G-1 hereto (or such other form acceptable to us) covering each Mortgage Loan to be pledged to us;
(g) none of the following documentsshall have occurred and/or be continuing:
(i) an event or events shall have occurred resulting in the effective absence of a public or private market for mortgage- and asset-backed securities, each that (a) are secured by single-family residential mortgages and (b) as of which the date hereof, can be readily securitized in the domestic capital markets (the "U.S. Mortgage Securities Market"); or
(ii) the long-term rating of Deutsche Bank AG by ▇▇▇▇▇'▇ Investors Service, Inc. and Standard and Poor's, Ratings Group shall be satisfactory downgraded to Baa or lower or BBB or lower by each such agency, respectively;
(h) we shall have received from you a Request for Borrowing; and
(i) we shall have reviewed (no later than 20 Business Days following receipt of same) and approved in our sole discretion any modifications or amendments to the Lender in form Underwriting Guidelines. SCHEDULE 4 to Loan and substance:Security Agreement REPRESENTATIONS AND WARRANTIES RE: MORTGAGE LOANS
Appears in 1 contract
Sources: Loan and Security Agreement (Firstplus Financial Group Inc)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to Borrowers (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no No Default or Event of Default shall have occurred under this Loan Agreement and be continuingthere shall exist no default under any Mezzanine Financing Facility entered into by any Relevant Party;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the The representations and warranties made by each Loan Party Borrowers in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.24 and Schedule 1, solely with respect to Pledged Equity and Properties included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the each related Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the The aggregate outstanding principal amount of the Advances funded hereunder shall not not, after giving effect to such Advance, exceed the lesser of the Borrowing Base and the Maximum Loan AmountCredit;
(d) subject Subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 14.18 hereof, the Lender shall have completed its due diligence review of the Property Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Property Schedule and all other documents required under Section 2.032.03 with respect to the Pledged Equity and Properties to be included in the Borrowing Base;
(f) the Lender shall have received from Diligence Agent a Diligence Agent Certification in respect of all Properties to be included in the following documentsBorrowing Base on such Business Day and an Exception Report (including, confirmation by Diligence Agent that each such Property is an Eligible Property) dated such Business Day and duly completed;
(g) With respect to any Property that was acquired by a Borrower from an Affiliate of which shall be satisfactory such Borrower, Lender may, in its sole discretion and at the expense of Lender, require such Borrower to the provide evidence sufficient to satisfy Lender that such Property was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to Lender in its reasonable discretion, that such Property was acquired in a legal sale;
(h) No event beyond the control of Lender which Lender reasonably determines may result in Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing, shall have occurred or be continuing;
(i) Lender shall have determined that all actions necessary or, in the reasonable opinion of Lender, desirable to maintain Lender’s perfected, first priority security interest in the Pledged Equity and other Collateral have been taken, including, without limitation, duly executing and filing Uniform Commercial Code financing statements on Form UCC 1;
(j) Borrowers shall have paid to Lender all fees and expenses owed to Lender in accordance with this Loan Agreement and any other Loan Document including, without limitation the amount of Diligence Agent Fees, Paying Agent Fees, Calculation Agent Fes or Commitment Fee then due and owing, and all of Lender’s attorney fees and expenses and due diligence expenses then due and owing in accordance with the Pricing Side Letter and the other Loan Documents;
(k) Lender or its designee shall have received any other documents reasonably requested by Lender with reasonable notice to Borrowers;
(l) Reserved;
(m) With respect to any Property and any Pledged Equity that is subject to a security interest (including any precautionary security interest) immediately prior to the Funding Date, Lender shall have received a Security Release Certification for such Property or Pledged Equity, as applicable that is duly executed by the related secured party and the related Borrower;
(n) Borrowers shall have delivered to Lender copies of each related Asset Management Agreement with respect to each Contributed Property, including any and all amendments that materially affect the servicing of the Contributed Properties and Lender’s interest therein and an accompanying duly executed Assignment of Asset Management Agreement (to the extent not previously provided);
(o) Lender or its designee shall have received all Property Documents comprising the Property File for each Contributed Property on or before the related Funding Date, together with such certificates or other documents as Lender may reasonably request;
(p) If such Property is to be owned by an Additional Borrower which has not previously joined this facility by compliance with the documents specified below, the following additional documents:
(i) an updated Borrower Pledged Equity Summary delivered pursuant to Section 2.03(c);
(ii) the original Pledged Equity certificates with respect to the Pledged Equity of such Additional Borrower;
(iii) an undated stock power (or equivalent document) covering such certificates, duly executed in blank;
(iv) certificates of an authorized officer of such Additional Borrower, together with copies of its Governing Documents, applicable corporate resolutions and incumbencies and signatures of officers who are executing the applicable Loan Documents, evidencing the respective authority of such Additional Borrower with respect to the execution, delivery and performance thereof;
(v) a closing certificate executed by such Additional Borrower;
(vi) an executed Power of Attorney in the form of Exhibit I for such Additional Borrower;
(vii) evidence that (x) UCC financing statements have been filed against such Additional Borrower in all filing offices reasonably required by Lender, (y) Lender has received such searches of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to each Additional Borrower as Lender may reasonably require, and (z) the results of such searches are reasonably satisfactory to Lender;
(viii) such opinions from counsel to the Additional Borrower as Lender may require, including with respect to the valid existence and good standing of such Additional Borrower, enforceability, non-contravention, no consents or approvals required other than those that have been obtained, the attachment and perfection of the security interest in favor of Lender in the Pledged Equity of such Additional Borrower and the Collateral to be pledged by it, Investment Company Act matters, and “bring down” true sale and substantive non-consolidation opinions;
(ix) Joinder Agreements to each Loan Document entered into by Borrowers, executed and delivered by the Additional Borrower;
(x) to the extent applicable, duly executed amendments to all Governing Documents for the Additional Borrower, reasonably acceptable to Lender;
(xi) an Asset Management Agreement and the related Assignment of Asset Management Agreement, Joinder to this Loan Agreement and each Loan Document to which Borrowers are a party that are duly executed by the Additional Borrower; and
(xii) such certificates or other documents, information financial statements, reports and/or approvals as Lender may reasonably request.
(q) To the extent the financial statements referenced in Section 7.01 have been completed, Lender shall have received such financial statements;
(r) To the extent applicable, Lender shall have received all documentation entered into in connection with any Mezzanine Financing Facility and a Mezzanine Financing Intercreditor Agreement in form and substance reasonably acceptable to Lender and duly executed by each Mezzanine Lender under any Mezzanine Financing Facility;
(s) Reserved;
(t) Reserved;
(u) Borrowers are in compliance with Section 7.16 hereof;
Appears in 1 contract
Sources: Master Loan and Security Agreement (Supernova Partners Acquisition Company, Inc.)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to you (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the satisfaction of the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each you in the Loan Party in Section 6 hereofand Security Agreement and SCHEDULE 4 thereto, and by each Loan Party elsewhere in each of the any other Loan Documentsdocument related thereto, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 20(q) and SCHEDULE 4, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender We shall have received an officer’s 's certificate signed by a one of your Responsible Officer of the Borrower Officers certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that you are in form compliance in all material respects with all governmental licenses and substance acceptable authorizations and are qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s our right to perform one or more Due Diligence Reviews pursuant to Section 10.15 hereof35 of the Loan and Security Agreement, the Lender we shall have completed its our due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender we, in its reasonable discretion deems our sole discretion, deem appropriate to review and such review shall be satisfactory to the Lender us in its reasonable our sole discretion;
(e) the Lender we shall have received from the Custodian a Notice Trust Receipt with exceptions as are acceptable to us in our sole discretion in respect of Borrowing Eligible Assets to be pledged hereunder on such Business Day and all other documents required under Section 2.03a Collateral Schedule and Exception Report, in each case dated such Business Day and duly completed;
(f) the Lender we shall have received from you a Warehouse Lender's Release Letter substantially in the form of EXHIBIT G-2 hereto (or such other form acceptable to us) or a Borrower's Release Letter substantially in the form of EXHIBIT G-1 hereto (or such other form acceptable to us) covering each Mortgage Loan to be pledged to us;
(g) none of the following documentsshall have occurred and/or be continuing:
(i) an event or events shall have occurred resulting in the effective absence of a public or private market for mortgage- and asset-backed securities, each that (a) are secured by single-family residential mortgages and (b) as of which the date hereof, can be readily securitized in the domestic capital markets (the "U.S. Mortgage Securities Market"); or
(ii) the long-term rating of Deutsche Bank AG by ▇▇▇▇▇'▇ Investors Service, Inc. and Standard and Poor's, Ratings Group shall be satisfactory downgraded to Baa or lower or BBB or lower by each such agency, respectively;
(h) we shall have received from you a Request for Borrowing; and
(i) we shall have reviewed (no later than 20 Business Days following receipt of same) and approved in our sole discretion any modifications or amendments to the Lender Underwriting Guidelines. SCHEDULE 4 to Loan and Security Agreement REPRESENTATIONS AND WARRANTIES RE: MORTGAGE LOANS Part I. ELIGIBLE MORTGAGE LOANS As to each Mortgage Loan included in form the Borrowing Base on a Funding Date (and substance:the related Mortgage, Mortgage Note, Assignment of Mortgage and Mortgaged Property), you shall be deemed to make the following representations and warranties to us as of such date and as of each date Market Value is determined (certain defined terms used herein and not otherwise defined in the Loan and Security Agreement appearing in Part III to this Schedule 4). With respect to any representations and warranties made to the best of your knowledge, in the event that it is discovered that the circumstances with respect to the related Mortgage Loan are not accurately reflected in such representation and warranty notwithstanding your knowledge or lack of knowledge, then, notwithstanding that such representation and warranty is made to the best of your knowledge, such Mortgage Loan shall be assigned a Collateral Value of zero.
Appears in 1 contract
Sources: Loan and Security Agreement (Firstplus Financial Group Inc)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement Borrowers (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuingcontinuing or would be created by the making of such Advance;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrowers in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the applicable Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 10.16 hereof, the Lender shall have completed its due diligence review view of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances and the Borrowers as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each of which case dated such Business Day and duly completed;
(g) if any Mortgage Loans to be pledged hereunder were acquired by the Borrowers, such Mortgage Loans shall be satisfactory conform to the Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(h) the Lender shall have received all information requested from the Borrowers relating to Interest Rate Protection Agreements pursuant to Section 7.24, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrowers from interest rate fluctuations;
(i) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the applicable Borrower, with the related Servicing Agreement (as defined in Section 10.15(c)) attached thereto, which such Servicing Agreement shall be in form and substancesubstance acceptable to Lender;
(j) with respect to making any Tranche A Advances or Tranche B Advances, if at any time after the Effective Date, either Borrower shall have materially amended or modified its Underwriting Guidelines, such Borrower shall have delivered to the Lender a complete copy of such amended or modified Underwriting Guidelines and the Lender shall have consented in writing to such material amendment or modification; and
(k) neither of the following shall have occurred and/or be continuing:
(i) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender shall have occurred which the Lender reasonably determines may result in the Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing. Each request for a borrowing by either Borrower hereunder shall constitute a certification by such Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing). Notwithstanding any other terms and conditions of this Warehouse Agreement, Aames Funding shall not be required to satisfy any conditions precedent other than those provided in Section 5.01(a), 5.01(b)(i) and 5.01(b)(ii) until such date as Aames Funding shall request an Advance hereunder, at which time it shall be a condition precedent to the Lender making such Advance that Aames Funding shall have satisfied all conditions provided herein.
Appears in 1 contract
Sources: Warehouse Loan and Security Agreement (Aames Investment Corp)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review view of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances and the Borrower as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) with respect to Mortgage Loans originated in Florida and California on forms not acceptable to FNMA, the Borrower shall (i) deliver copies of which such forms to the Lender and (ii) deliver an opinion of counsel acceptable to the Lender substantially in the form of items number 12 and 13 of Exhibit C. In the event that the aggregate principal balance of Mortgage Loans originated in any other state on forms not acceptable to FNMA exceeds 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, the Lender may, in its sole discretion require an opinion of counsel to be delivered to the Lender as contemplated in the preceding sentence;
(h) if any Mortgage Loans to be pledged hereunder were acquired by the Borrower, such Mortgage Loans shall be satisfactory conform to the Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(i) the Lender shall have received all information requested from the Borrower relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrower from interest rate fluctuations; and
(j) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrower, with the related Servicing Agreement (as defined in Section 11.15(c)) attached thereto, which such Servicing Agreement shall be in form and substance:substance acceptable to Lender. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (Aames Financial Corp/De)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Contracts and Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit;
(d) subject if any Mortgage Loans are MERS Mortgage Loans, the Lender and the Originator shall have entered into an Electronic Tracking Agreement with MERS in a form acceptable to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 hereof, the Lender shall have completed its due diligence review of such documents, records, agreements, instruments, mortgaged properties or information relating to such Advance as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;.
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Asset Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of the Contracts and Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Contracts and Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory the Contracts and Mortgage Loans pledged secured by Mortgaged Property or Secured Property from any state to exceed 15% of the aggregate outstanding principal balance of the Contracts and Mortgage Loans pledged hereunder, then the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C, and an opinion of counsel as to the characterization of such Contract or Mortgage Loan under the Uniform Commercial Code of the state in which the Collateral Files are held by the Custodian and under the laws of the State of New York or the laws of such other state or states as the parties reasonably determine are applicable.
(h) with respect to any Contract or Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Contracts or Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Contract or Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) an event or events, beyond the reasonable control of the Lender, resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender which the Lender reasonably determines may result in the Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing.
(j) if any Contracts or Mortgage Loans to be pledged hereunder were acquired by the Borrower, such Contracts or Mortgage Loans shall conform to the Borrower’s Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Contracts or Mortgage Loans acceptable to the Lender in its reasonable discretion;
(k) the Lender shall have received all information requested from the Borrower relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrower from interest rate fluctuations; and
(l) the Lender shall have received (to the extent not previously provided), no later than 1:00 p.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrower, with the Servicing Agreement attached thereto, which such Servicing Agreement shall be in form and substance acceptable to Lender. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (Fleetwood Enterprises Inc/De/)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each prior Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then the Borrower shall, upon reasonable request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender which the Lender reasonably determines may result in the Lender's inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing;.
(j) if any Mortgage Loans to be pledged hereunder were not originated by the Borrower, such Mortgage Loans shall conform to the Borrower's Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(k) the Lender shall have received all information requested from the Borrower relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrower from interest rate fluctuations; and
(l) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrower, with the related Servicing Agreement (as defined in Section 11.15(c)) attached thereto, which such Servicing Agreement shall be in form and substance acceptable to Lender. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (New Century Financial Corp)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Default, Event of Default or event which, in the sole judgment of the Lender, may have a Material Adverse Effect shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower and Guarantor in Section 6 hereof, hereof and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties set forth on Schedule 1 solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Asset Schedule and Asset Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian, a Custodian Asset Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) a catastrophic event or events shall have occurred resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities for a period of (or reasonably expected to be) at least 30 consecutive days and the same has resulted in the Lender not being able to finance any Advances through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events;
(ii) a catastrophic event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans for a period of (or reasonably expected to be) at least 30 consecutive days and the same results in the Lender not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such catastrophic event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under this Loan Agreement and the Lender shall have given notice thereof pursuant to Section 11.02 hereof to the Borrower at least 30 days prior to the requested Funding Date;
Appears in 1 contract
Sources: Master Loan and Security Agreement (New Century Financial Corp)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to Borrower (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) No Cash-Trap Trigger Event, Default, Material Adverse Effect or Extension Period shall be in existence and no Default or Event of Default shall have occurred and be continuingoccurred;
(b) both Both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.24 and Schedule 1, solely with respect to Pledged Equity and REO Properties included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that Borrower and each applicable Eligible REO Entity is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the The aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit either immediately prior to such Advance or after giving effect to such Advance;
(d) subject Subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 12.18 hereof, the Lender shall have completed its due diligence review of the REO Documents for each Advance, all documents related to the Eligible REO Entity and the related Pledged Equity and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, REO Property Schedule and all other documents required under Section 2.032.03 with respect to the Pledged Equity and REO Properties to be included in the Borrowing Base;
(f) the Lender shall have received from the following documentsCustodian a Custodian Asset Transmission and one or more Trust Receipts in respect of all REO Properties to be included in the Borrowing Base on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) With respect to any REO Property that was acquired by an Eligible REO Entity from an Affiliate, Lender may, in its sole discretion and at the expense of which shall be satisfactory Lender, require Borrower to the provide evidence sufficient to satisfy Lender that such REO Property was acquired in a legal sale, including without limitation, an opinion, in form and substance:substance and from an attorney, in both cases, reasonably acceptable to Lender, that such REO Property was acquired in a legal sale;
(h) Reserved;
(i) No event beyond the control of Lender which Lender reasonably determines may result in Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing, shall have occurred or be continuing;
(j) If any Contributed REO Properties are serviced or interim serviced by any Sub-Asset Manager, Lender shall have received not later than 10:00 a.m. three (3) days prior to the requested Funding Date (or, with respect to an Advance made on the Effective Date, the Effective Date), a Sub-Asset Manager Side Letter in the form attached hereto as Exhibit F-2, executed by the Asset Manager and acknowledged by the Borrower, the related Eligible REO Entity, such Sub-Asset Manager and Lender, with the related Sub-Asset Management Agreement attached thereto in form and substance acceptable to Lender; provided, that, solely with respect to the Sub-Asset Manager Side Letter between Asset Manager and Moving Station LLC, the Borrower shall deliver such Sub-Asset Manager Side Letter within fourteen (14) days following the date hereof. Each such Sub-Asset Management Agreement shall be fully assignable to Lender;
(k) Lender shall have determined that all actions necessary or, in the reasonable opinion of Lender, desirable to maintain Lender’s perfected security interest in the Pledged Equity and other Collateral have been taken, including, without limitation, duly executing and filing Uniform Commercial Code financing statements on Form UCC 1;
(l) Borrower shall have paid to Lender all fees and expenses owed to Lender in accordance with this Loan Agreement and any other Loan Document including, without limitation the amount of any Commitment Fees then due and owing, and all of Lender’s attorney fees and expenses and due diligence expenses then due and owing in accordance with the Pricing Side Letter and the other Loan Documents;
(m) Lender or its designee shall have received any other documents reasonably requested by Lender with reasonable notice to Borrower;
(n) Reserved;
(o) Borrower shall have provided to Lender copies of all due diligence that Borrower, Parent SPE or Asset Managers or any other Person on any of their behalf has performed with respect to any Pledged Equity or any related Contributed REO Properties;
(p) Borrower shall have provided to Lender all required valuation documentation with respect to such REO Property, in accordance with the Valuation Requirements;
(q) With respect to each REO Property that is subject to a security interest (including any precautionary security interest but excluding any Permitted Encumbrance) immediately prior to the Funding Date, Lender shall have received a Security Release Certification for such REO Property that is duly executed by the related secured party and applicable Eligible REO Entity;
(r) Borrower shall have delivered to Lender copies of each related Asset Management Agreement and Sub-Asset Management Agreement with respect to each Contributed REO Property, including any and all amendments that materially affect the servicing of the Contributed REO Properties and Lender’s interest therein and an accompanying duly executed Asset Manager Side Letter and Sub-Asset Manager Side Letter for the related Asset Manager (in each case to the extent not previously provided);
(s) Lender or its designee shall have received on or before the Effective Date with respect to the Borrower and the Borrower Pledged Equity, and on or before the related Funding Date with respect to any REO Properties owned by an Eligible REO, the related Eligible REO Entities and the related Eligible REO Entity Pledged Equity not previously pledged, the following, in form and substance satisfactory to Lender and (if applicable) duly executed (in each case to the extent not previously delivered):
(i) the original Pledged Equity certificates with respect to the Borrower Pledged Equity and such Eligible REO Entity Pledged Equity;
(ii) an undated stock power covering such certificate, duly executed in blank;
(iii) the Governing Documents of Borrower or such Eligible REO Entity, as applicable together with a certificate of good standing with respect to Borrower or such Eligible REO Entity, in each case reasonably acceptable to Lender, together with an officer’s certificate of Borrower certifying as to the accuracy of each such document;
(iv) an executed Power of Attorney in the form of Exhibit I for Borrower or such Eligible REO Entity, as applicable;
(v) an Eligible REO Entity Guaranty and Pledge, duly executed and delivered by such Eligible REO Entity;
(vi) an Asset Management Agreement and the related Asset Manager Side Letter (and, to the extent applicable, a Sub-Asset Management Agreement and the related Sub-Asset Manager Side Letter) for all Contributed REO Properties owned by such Eligible REO Entity;
(vii) evidence that a Collection Account has been established for such Eligible REO Entity;
(viii) all required documents comprising the REO Property File for each Contributed REO Property or REO Property proposed to be contributed to such Eligible REO Entity on such Funding Date;
(ix) evidence that UCC financing statements have been filed against Borrower and such Eligible REO Entity in all filing offices reasonably required by Lender, (ii) Lender has received such searches of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to Borrower or such Eligible REO Entity as Lender may reasonably require, and (iii) the results of such searches are reasonably satisfactory to Lender; and
(x) such certificates or other documents as Lender may reasonably request.
(t) To the extent the financial statements referenced in Section 7.01 have been completed, Lender shall have received such financial statements.
(u) Lender has received a schedule of the actual Monthly Operating Expenses incurred by or on behalf of the Eligible REO Entities (on an entity-by-entity basis) for the calendar month preceding the first Payment Date;
(v) with respect to each proposed REO Property that is a Leased Property as of such Funding Date, (i) Borrower has delivered or caused to be delivered to each related Tenant a Tenant Agency Notice duly executed by the related Eligible REO Entity and (ii) Lender has received such other documents as Lender may request, including but not limited to the following: (x) current rent roll (including actual and expected rents), if applicable; and
(w) The General Reserve Account Required Amount is maintained in the General Reserve Account; and
(x) Borrower shall cause Asset Managers to deliver to Custodian an executed Tenant Instruction Notice with respect to each Contributed REO Property; provided, that solely with respect to the Contributed REO Properties pledged hereunder as of the initial Funding Date Borrower shall or shall cause such Tenant Instruction Notices to be delivered within thirty (30) days following the initial Funding Date; provided, further, that Lender shall not deliver such Tenant Instruction Notice until after the occurrence and continuation of an Event of Default hereunder. Each request for a borrowing by Borrower hereunder shall constitute a certification by Borrower to the effect set forth in this section (both as of the date of such notice, request or confirmation and as of the date of such borrowing). With respect to any Advance, Lender may conclusively rely upon, and shall incur no liability to Borrower in acting upon, any request or other communication that Lender reasonably believes to have been given or made by a person authorized to request an Advance on Borrower’s behalf.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Starwood Waypoint Residential Trust)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review view of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 15% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) a catastrophic event or events shall have occurred resulting in the effective absence of a "repo market" or comparable "lending market" for financing debt obligations secured by mortgage loans or securities for a period of (or reasonably expected to be) at least 30 consecutive days and the same has resulted in the Lender not being able to finance any Advances through the "repo market" or "lending market" with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events;
(ii) a catastrophic event or events shall have occurred resulting in the effective absence of a "securities market" for securities backed by mortgage loans for a period of (or reasonably expected to be) at least 30 consecutive days and the same results in the Lender not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such catastrophic event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under this Loan Agreement and the Lender shall have given notice thereof pursuant to Section 11.02 hereof to the Borrower at least 30 days prior to the requested Funding Date; In the event of an occurrence of any of the events described in clauses (i), (ii) or (iii) above, the Commitment Fee payable by the Borrower shall be prorated on the basis of the actual number of days during which this Loan Agreement was in effect.
(j) if any Mortgage Loans to be pledged hereunder were acquired by the Borrower, such Mortgage Loans shall conform to the Borrower's Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion; and
(k) the Lender shall have received all information requested from the Borrower relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrower from interest rate fluctuations. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to a Borrower (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrowers in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the each Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Borrowing Base or the Uncommitted Amount; and the aggregate outstanding principal amount of the Advances under this Loan Agreement and any other loan agreement between the Lender and the Borrowers shall not exceed, in the aggregate, the Uncommitted Amount;.
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then such Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of any Borrower, the Lender may, in its sole discretion, require such Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund any obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender which the Lender reasonably determines may result in the Lender's inability to perform any obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing.
(j) if any Mortgage Loans to be pledged hereunder were acquired by any Borrower, such Mortgage Loans shall conform to such Borrower's Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(k) the Lender shall have received all information requested from the Borrowers relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrowers from interest rate fluctuations; and
(l) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrowers, with the related Servicing Agreement attached thereto, which such Servicing Agreement shall be in form and substance acceptable to Lender. Each request for a borrowing by any Borrower hereunder shall constitute a certification by the Borrowers to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (New York Mortgage Trust Inc)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance and on and as of each date thereafter until the Termination Date in all material respects (in the case of the representations and warranties in Schedule 1 and Schedule 6, solely with respect to Eligible Contracts included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the Servicer shall have delivered the Borrowing Base Certificate for such Funding Date to the Lender pursuant to Section 2.03(c)(iv) of this Loan Agreement;
(d) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(de) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.15 hereof, the Lender Custodian shall have completed its due diligence review view of the Contract Delivery Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties instruments Financed Vehicles or information relating to such Advance Advances as the Lender Custodian in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and all other documents required under Section 2.03;
(f) the Lender shall have received the following documentsNotice of Borrowing Base and Pledge from the Borrower, each and the Borrower shall have timely made all of which the deliveries under Sections 2.01, 2.02 and 2.03 of the Custodial Agreement;
(g) the Custodian shall be satisfactory have timely made all of the deliveries under Sections 3.01, 3.02, 3.03 and 3.04 of the Custodial Agreement; and
(h) if any Pledged Contracts were acquired by the Borrower from third parties, such Contracts shall conform to the Borrower's Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Contracts acceptable to the Lender in form its sole discretion. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and substance:as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (Ugly Duckling Corp)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to Borrowers (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no No Default or Event of Default shall have occurred under this Loan Agreement and be continuingthere shall exist no default under any Mezzanine Financing Facility entered into by any Relevant Party;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the The representations and warranties made by each Loan Party Borrowers in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.24 and Schedule 1, solely with respect to Pledged Equity and Properties included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the each related Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the The aggregate outstanding principal amount of the Advances funded hereunder shall not not, after giving effect to such Advance, exceed the lesser of the Borrowing Base and the Maximum Loan AmountCredit;
(d) subject Subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 14.18 hereof, the Lender shall have completed its due diligence review of the Property Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Property Schedule and all other documents required under Section 2.032.03 with respect to the Pledged Equity and Properties to be included in the Borrowing Base;
(f) the Lender shall have received from Diligence Agent a Diligence Agent Certification in respect of all Properties to be included in the following documentsBorrowing Base on such Business Day and an Exception Report (including, confirmation by Diligence Agent that each such Property is an Eligible Property) dated such Business Day and duly completed;
(g) With respect to any Property that was acquired by a Borrower from an Affiliate of which shall be satisfactory such Borrower, Lender may, in its sole discretion and at the expense of Lender, require such Borrower to the provide evidence sufficient to satisfy Lender that such Property was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to Lender in its reasonable discretion, that such Property was acquired in a legal sale;
(h) No event beyond the control of Lender which Lender reasonably determines may result in Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing, shall have occurred or be continuing;
(i) Lender shall have determined that all actions necessary or, in the reasonable opinion of Lender, desirable to maintain Lender’s perfected, first priority security interest in the Pledged Equity and other Collateral have been taken, including, without limitation, duly executing and filing Uniform Commercial Code financing statements on Form UCC 1;
(j) Borrowers shall have paid to Lender all fees and expenses owed to Lender in accordance with this Loan Agreement and any other Loan Document including, without limitation the amount of Diligence Agent Fees, Paying Agent Fees, Calculation Agent Fes or Commitment Fee then due and owing, and all of Lender’s attorney fees and expenses and due diligence expenses then due and owing in accordance with the Pricing Side Letter and the other Loan Documents;
(k) Lender or its designee shall have received any other documents reasonably requested by Lender with reasonable notice to Borrowers;
(l) [Reserved];
(m) With respect to any Property and any Pledged Equity that is subject to a security interest (including any precautionary security interest) immediately prior to the Funding Date, Lender shall have received a Security Release Certification for such Property or Pledged Equity, as applicable that is duly executed by the related secured party and the related Borrower;
(n) Borrowers shall have delivered to Lender copies of each related Asset Management Agreement with respect to each Contributed Property, including any and all amendments that materially affect the servicing of the Contributed Properties and Lender’s interest therein and an accompanying duly executed Assignment of Asset Management Agreement (to the extent not previously provided);
(o) Lender or its designee shall have received all Property Documents comprising the Property File for each Contributed Property on or before the related Funding Date, together with such certificates or other documents as Lender may reasonably request;
(p) If such Property is to be owned by an Additional Borrower which has not previously joined this facility by compliance with the documents specified below, the following additional documents:
(i) an updated Borrower Pledged Equity Summary delivered pursuant to Section 2.03(c);
(ii) the original Pledged Equity certificates with respect to the Pledged Equity of such Additional Borrower;
(iii) an undated stock power (or equivalent document) covering such certificates, duly executed in blank;
(iv) certificates of an authorized officer of such Additional Borrower, together with copies of its Governing Documents, applicable corporate resolutions and incumbencies and signatures of officers who are executing the applicable Loan Documents, evidencing the respective authority of such Additional Borrower with respect to the execution, delivery and performance thereof;
(v) a closing certificate executed by such Additional Borrower;
(vi) an executed Power of Attorney in the form of Exhibit I for such Additional Borrower;
(vii) evidence that (x) UCC financing statements have been filed against such Additional Borrower in all filing offices reasonably required by Lender, (y) Lender has received such searches of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to each Additional Borrower as Lender may reasonably require, and (z) the results of such searches are reasonably satisfactory to Lender;
(viii) such opinions from counsel to the Additional Borrower as Lender may require, including with respect to the valid existence and good standing of such Additional Borrower, enforceability, non-contravention, no consents or approvals required other than those that have been obtained, the attachment and perfection of the security interest in favor of Lender in the Pledged Equity of such Additional Borrower and the Collateral to be pledged by it, Investment Company Act matters, and “bring down” true sale and substantive non-consolidation opinions;
(ix) Joinder Agreements to each Loan Document entered into by Borrowers, executed and delivered by the Additional Borrower;
(x) to the extent applicable, duly executed amendments to all Governing Documents for the Additional Borrower, reasonably acceptable to Lender;
(xi) an Asset Management Agreement and the related Assignment of Asset Management Agreement, Joinder to this Loan Agreement and each Loan Document to which Borrowers are a party that are duly executed by the Additional Borrower; and
(xii) such certificates or other documents, information financial statements, reports and/or approvals as Lender may reasonably request.
(q) To the extent the financial statements referenced in Section 7.01 have been completed, Lender shall have received such financial statements;
(r) To the extent applicable, Lender shall have received all documentation entered into in connection with any Mezzanine Financing Facility and a Mezzanine Financing Intercreditor Agreement in form and substance reasonably acceptable to Lender and duly executed by each Mezzanine Lender under any Mezzanine Financing Facility;
(s) [Reserved];
(t) [Reserved];
(u) Borrowers are in compliance with Section 7.16 hereof;
(v) [Reserved]; Each request for a borrowing by a Borrower hereunder shall constitute a certification by such Borrower to the effect set forth in this section (both as of the date of such notice, request or confirmation and as of the date of such borrowing). With respect to any Advance, Lender may conclusively rely upon, and shall incur no liability to Borrowers in acting upon, any request or other communication that Lender reasonably believes to have been given or made by a person authorized to request an Advance on Borrowers’ behalf.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Offerpad Solutions Inc.)
Initial and Subsequent Advances. Subject to the amendments, restatements, supplements or other modifications in Section 5.02 of Appendix A and the terms and provisions of the Post-Closing Letter Agreement, the making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on each Funding Date is subject to the following further conditions precedent both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party party in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer Person of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be in form and substance acceptable to the Lender in its sole, reasonable discretion.;
(c) the aggregate principal amount of the Advances funded hereunder shall not exceed the Maximum Loan Amount;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of such documents, records, agreements, instruments, mortgaged properties or information relating to such Advance as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and all other documents required under Section 2.03;
(f) the Lender shall have received determined that all actions necessary or, in the following documentsopinion of the Lender, each of which desirable to maintain the Lender’s perfected interest in the Facility Collateral have been taken (including after-acquired Facility Collateral), including, without limitation, duly filed Uniform Commercial Code financing statements on Form UCC-1, duly filed liens with the United States Copyright Office and the United States Patent and Trademark Office, and duly recorded Mortgages;
(g) the Borrower shall be satisfactory have paid to the Lender all fees and expenses owed to the Lender, including without limitation, reasonable attorney’s fees, in form accordance with this Loan Agreement and substance:any other Loan Document;
(h) the Lender or its designee shall have received any other documents reasonably requested by the Lender and the Borrower shall have provided such documents within a reasonable period of time after such request; and
(i) each Loan Party shall have performed (to the satisfaction of the Lender) all other conditions to the making of an Advance requested by the Lender, including, without limitation, compliance in all respects with the terms and conditions of the Post-Closing Letter Agreement.
(j) in the event that the Loan Parties were unable to obtain the necessary waivers, amendments, approvals and consents described in Section 5.01(l), each Monday (or if such day is not a Business Day, the next succeeding Business Day), the Borrower shall deliver to the Lender a weekly status report, commencing with the week of January 5, 2009, identifying each holder of a Senior Lien and each Senior Lien Lender, and the actions taken by the Loan Parties to obtain such necessary waivers, amendments, approvals, and consents. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to theBorrower (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then (unless the related Mortgage Loan Documents used by the Borrower in such state are on ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved forms) the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender which the Lender reasonably determines may result in the Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing.
(j) if any Mortgage Loans to be pledged hereunder were acquired by the Borrower, such Mortgage Loans shall conform to the Borrower’s Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(k) the Lender shall have received all information requested from the Borrower relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrower from interest rate fluctuations; and
(l) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrower, with the related Servicing Agreement (as defined in Section 11.15(c)) attached thereto, which such Servicing Agreement shall be in form and substance acceptable to Lender. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (Aames Financial Corp/De)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties set forth on Schedule 1 solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Asset Schedule and Asset Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian, a Custodian Asset Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) a catastrophic event or events shall have occurred resulting in the effective absence of a "repo market" or comparable "lending market" for financing debt obligations secured by mortgage loans or securities for a period of (or reasonably expected to be) at least 30 consecutive days and the same has resulted in the Lender not being able to finance any Advances through the "repo market" or "lending market" with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events;
(ii) a catastrophic event or events shall have occurred resulting in the effective absence of a "securities market" for securities backed by mortgage loans for a period of (or reasonably expected to be) at least 30 consecutive days and the same results in the Lender not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such catastrophic event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under this Loan Agreement and the Lender shall have given notice thereof pursuant to Section 11.02 hereof to the Borrower at least 30 days prior to the requested Funding Date;
Appears in 1 contract
Sources: Master Loan and Security Agreement (New Century Financial Corp)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement Borrowers (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuingcontinuing or would be created by the making of such Advance;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrowers in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the applicable Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 10.16 hereof, the Lender shall have completed its due diligence review view of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances and the Borrowers as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each of which case dated such Business Day and duly completed;
(g) if any Mortgage Loans to be pledged hereunder were acquired by the Borrowers, such Mortgage Loans shall be satisfactory conform to the Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(h) the Lender shall have received all information requested from the Borrowers relating to Interest Rate Protection Agreements pursuant to Section 7.24, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrowers from interest rate fluctuations;
(i) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the applicable Borrower, with the related Servicing Agreement (as defined in Section 10.15(c)) attached thereto, which such Servicing Agreement shall be in form and substance:substance acceptable to Lender;
(j) with respect to making any Tranche A Advances or Tranche B Advances, if at any time after the Effective Date, either Borrower shall have materially amended or modified its Underwriting Guidelines, such Borrower shall have delivered to the Lender a complete copy of such amended or modified Underwriting Guidelines and the Lender shall have consented in writing to such material amendment or modification; and
(k) neither of the following shall have occurred and/or be continuing: an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under or otherwise comply with the terms of this Loan Agreement; or any other event beyond the control of the Lender shall have occurred which the Lender reasonably determines may result in the Lender's inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing. Each request for a borrowing by either Borrower hereunder shall constitute a certification by such Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing). Notwithstanding any other terms and conditions of this Warehouse Agreement, Aames Funding shall not be required to satisfy any conditions precedent other than those provided in Section 5.01(a), 5.01(b)(i) and 5.01(b)(ii) until such date as Aames Funding shall request an Advance hereunder, at which time it shall be a condition precedent to the Lender making such Advance that Aames Funding shall have satisfied all conditions provided herein.
Appears in 1 contract
Sources: Warehouse Loan and Security Agreement (Aames Financial Corp/De)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement Borrowers (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the each Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then (unless the related Mortgage Loan Documents used by the Borrowers in such state are on ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved forms) the Borrowers shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of a Borrower, the Lender may, in its sole discretion, require the related Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender which the Lender reasonably determines may result in the Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing.
(j) if any Mortgage Loans to be pledged hereunder were acquired by a Borrower, such Mortgage Loans shall conform to such Borrower’s Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(k) the Lender shall have received all information requested from the Borrowers relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrowers from interest rate fluctuations; and
(l) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrowers, with the related Servicing Agreement (as defined in Section 11.15(c)) attached thereto, which such Servicing Agreement shall be in form and substance acceptable to Lender. Each request for a borrowing by the Borrowers hereunder shall constitute a certification by the Borrowers to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (Aames Investment Corp)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to Borrower (including any Advance on the Borrower as provided for under this Loan Agreement Effective Date) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) No Cash-Trap Trigger Event, Default, Material Adverse Effect or Extension Period shall be in existence and no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance The representations and also after giving effect thereto warranties made by Borrower in Section 6 hereof, and to the intended use thereof, the representations and warranties made by Borrower and each Loan Party in Section 6 hereof, and by each Loan Party Eligible Property Owner in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (except, in the case of the representations and warranties in Section 6.19 and Schedule 1, any such representations and warranties which were made with respect to any Properties or Pledged Equity no longer included in the Borrowing Base or the Adjusted Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the LenderAdministrative Agent, the Lender Administrative Agent shall have received an officer’s certificate signed by a Responsible Officer of the Borrower or Eligible Property Owner certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that Borrower and each applicable Eligible Property Owner is in form compliance with all Requirements of Law and substance acceptable is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the The aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit;
(d) subject Subject to the LenderAdministrative Agent’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 13.18 hereof, the Lender Administrative Agent shall have completed its due diligence review of all documents related to the Eligible Property Owner and the related Pledged Equity and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender such Agent in its reasonable discretion deems appropriate to review and such review reviews shall be satisfactory to the Lender Administrative Agent in its reasonable discretion;
(e) the Lender Agents shall have received a Notice of Borrowing and Pledge, Property Schedule and all other documents required under Section 2.032.03 with respect to the Pledged Equity and Properties to be included in the Borrowing Base;
(f) the Lender Administrative Agent shall have received from the following documentsDiligence Agent an Asset Transmission and Diligence Agent Certification in respect of all Properties to be included in the Borrowing Base on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) With respect to any Property that was acquired by an Eligible Property Owner from an Affiliate, Administrative Agent may, in its sole discretion and at the expense of which shall be satisfactory Administrative Agent, require Borrower to the Lender provide evidence sufficient to satisfy Administrative Agent that such Property was acquired in a legal sale, including without limitation, an opinion, in form and substance:substance and from an attorney, in both cases, reasonably acceptable to Administrative Agent, that such Property was acquired in a legal sale;
(h) No event beyond the control of Administrative Agent or any Lender which Administrative Agent reasonably determines may result in Administrative Agent’s or any Lender’s inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing, shall have occurred or be continuing;
(i) If any Properties are serviced or interim serviced by any Sub-Asset Manager, Administrative Agent shall have received not later than 10:00 a.m. three (3) days prior to the requested Property Eligibility Date, a Sub-Asset Manager Side Letter in substantially the form attached hereto as Exhibit F-2, executed by the Asset Manager and acknowledged by the Borrower, the related Eligible Property Owner, such Sub-Asset Manager and Administrative Agent, with the related Sub-Asset Management Agreement attached thereto in form and substance acceptable to Administrative Agent. Each such Sub-Asset Management Agreement shall be fully assignable to Administrative Agent;
(j) Administrative Agent shall have determined that all actions necessary or, in the reasonable opinion of Administrative Agent, desirable to maintain Administrative Agent’s perfected, first priority security interest in the Pledged Equity and other Collateral have been taken, including, without limitation, duly executing and filing Uniform Commercial Code financing statements on Form UCC 1;
(k) Borrower shall have paid to Administrative Agent, for the benefit of each Agent, as applicable, all fees and expenses owed to Agents in accordance with this Loan Agreement and any other Loan Document including, without limitation the amount of any Diligence Agent Fees, Paying Agent Fees, Calculation Agent Fees and Commitment Fees then due and owing, and all of the Agents’ attorney fees and expenses and due diligence expenses then due and owing in accordance with the Diligence Agent Agreement and the other Loan Documents;
(l) Administrative Agent or its designee shall have received any other documents reasonably requested by Administrative Agent with reasonable notice to Borrower;
(m) Borrower shall have provided to Administrative Agent and Diligence Agent copies of all due diligence that Borrower, Parent SPE or Asset Managers or any other Person on any of their behalf has performed with respect to any Pledged Equity or any related Properties;
(n) Borrower shall have provided to Agents all required valuation documentation with respect to such Property, in accordance with the Valuation Requirements;
(o) With respect to each Property that is subject to a security interest (including any precautionary security interest but excluding any Permitted Encumbrance) immediately prior to the Property Eligibility Date, Agents shall have received a Security Release Certification for such Property that is duly executed by the related secured party and applicable Eligible Property Owner;
(p) Borrower shall have delivered to Administrative Agent and Diligence Agent copies of each related Asset Management Agreement and Sub-Asset Management Agreement with respect to each Property, including any and all amendments that materially affect the servicing of the Properties and Administrative Agent’s interest therein and an accompanying duly executed Asset Manager Side Letter and Sub-Asset Manager Side Letter for the related Asset Manager (in each case to the extent not previously provided);
(q) Administrative Agent or its designee shall have received on or before each Property Eligibility Date with respect to any Properties owned by an Eligible Property Owner, the related Eligible Property Owners and the related Eligible Property Owner Pledged Equity not previously pledged, the following, in form and substance satisfactory to Administrative Agent and (if applicable) duly executed (in each case to the extent not previously delivered):
(i) the original Pledged Equity certificates with respect such Eligible Property Owner Pledged Equity;
(ii) an undated stock power covering such certificate, duly executed in blank;
(iii) the Governing Documents of such Eligible Property Owner, as applicable together with a certificate of good standing with respect to such Eligible Property Owner, in each case reasonably acceptable to Administrative Agent, together with an officer’s certificate of such Eligible Property Owner certifying as to the accuracy of each such document;
(iv) an executed Power of Attorney in the form of Exhibit I for such Eligible Property Owner;
(v) an Eligible Property Owner Guaranty and Pledge, duly executed and delivered by such Eligible Property Owner;
(vi) an Asset Management Agreement and the related Asset Manager Side Letter (and, to the extent applicable, a Sub-Asset Management Agreement and the related Sub-Asset Manager Side Letter) for all Properties owned by such Eligible Property Owner (with copies to the Diligence Agent);
(vii) evidence that a Collection Account and Control Agreement with respect to such account has been established for such Eligible Property Owner;
(viii) all required documents comprising the Underwriting Package (including the Property File) for each Property owned by, or Property proposed to be contributed to, such Eligible Property Owner on such Property Eligibility Date (with a copy to the Diligence Agent);
(ix) evidence that UCC financing statements have been filed against Borrower and such Eligible Property Owner in all filing offices reasonably required by Administrative Agent, (ii) Administrative Agent has received such searches of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to Borrower or such Eligible Property Owner as Administrative Agent may reasonably require, and (iii) the results of such searches are reasonably satisfactory to Administrative Agent; and
(x) such certificates or other documents as Administrative Agent may reasonably request.
(r) To the extent the financial statements referenced in Section 7.01 have been completed, Administrative Agent shall have received such financial statements.
(s) The General Reserve Account Required Amount is maintained in the General Reserve Account;
(t) Each Loan Party shall have satisfied the “know your customer” requirements of the Administrative Agent and each Lender;
(u) Administrative Agent or its designee shall have received a Final Report;
(v) The Borrower shall have deposited in the Tax and Insurance Reserve Account the Tax and Insurance Reserve Account Required Amount with respect to any Eligible Properties added to the Borrowing Base since the last Payment Date;
(w) The Borrower has satisfied the Interest Rate Protection Agreement requirements set forth in Section 7.17; and
(x) The Administrative Agent shall have received evidence, to the extent not previously delivered, that the Borrower is in compliance with Section 7.21. Each request for a borrowing by Borrower hereunder shall constitute a certification by Borrower to the effect set forth in this section (both as of the date of such notice, request or confirmation and as of the date of such borrowing). With respect to any Advance, Administrative Agent may conclusively rely upon, and shall incur no liability to Borrower in acting upon, any request or other communication that Administrative Agent reasonably believes to have been given or made by a person authorized to request an Advance on Borrower’s behalf.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Starwood Waypoint Residential Trust)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement Borrowers (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuingcontinuing or would be created by the making of such Advance;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrowers in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the applicable Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that such Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 10.16 hereof, the Lender shall have completed its due diligence review view of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances and the Borrowers as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each of which case dated such Business Day and duly completed;
(g) if any Mortgage Loans to be pledged hereunder were acquired by the Borrowers, such Mortgage Loans shall be satisfactory conform to the Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(h) the Lender shall have received all information requested from the Borrowers relating to Interest Rate Protection Agreements pursuant to Section 7.24, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrowers from interest rate fluctuations;
(i) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the applicable Borrower, with the related Servicing Agreement (as defined in Section 10.15(c)) attached thereto, which such Servicing Agreement shall be in form and substancesubstance acceptable to Lender;
(j) with respect to making any Tranche A Advances or Tranche B Advances, if at any time after the Effective Date, either Borrower shall have materially amended or modified its Underwriting Guidelines, such Borrower shall have delivered to the Lender a complete copy of such amended or modified Underwriting Guidelines and the Lender shall have consented in writing to such material amendment or modification; and
(k) neither of the following shall have occurred and/or be continuing:
(1) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under or otherwise comply with the terms of this Loan Agreement; or
(2) any other event beyond the control of the Lender shall have occurred which the Lender reasonably determines may result in the Lender's inability to perform its obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing. Each request for a borrowing by either Borrower hereunder shall constitute a certification by such Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing). Notwithstanding any other terms and conditions of this Warehouse Agreement, Aames Funding shall not be required to satisfy any conditions precedent other than those provided in Section 5.01(a), 5.01(b)(i) and 5.01(b)(ii) until such date as Aames Funding shall request an Advance hereunder, at which time it shall be a condition precedent to the Lender making such Advance that Aames Funding shall have satisfied all conditions provided herein.
Appears in 1 contract
Sources: Warehouse Loan and Security Agreement (Aames Financial Corp/De)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund any obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender which the Lender reasonably determines may result in the Lender's inability to perform any obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing.
(j) if any Mortgage Loans to be pledged hereunder were acquired by the Borrower, such Mortgage Loans shall conform to the Borrower's Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(k) the Lender shall have received all information requested from the Borrower relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrower from interest rate fluctuations; and
(l) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrower, with the related Servicing Agreement attached thereto, which such Servicing Agreement shall be in form and substance acceptable to Lender. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (New York Mortgage Trust Inc)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties in Section 6.23 and Schedule 1, solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s 's certificate signed by a Responsible Officer of the Borrower certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Borrowing Base or the Maximum Loan AmountCredit;
(d) subject to the Lender’s 's right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Mortgage Loan List and Mortgage Loan Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian a Custodian Loan Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C;
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) an event or events resulting in the inability of the Lender to finance any Advances with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events or a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund any obligations under or otherwise comply with the terms of this Loan Agreement; or
(ii) any other event beyond the control of the Lender which the Lender reasonably determines may result in the Lender's inability to perform any obligations under this Loan Agreement including, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters of a similar nature to the foregoing.
(j) if any Mortgage Loans to be pledged hereunder were acquired by the Borrower, such Mortgage Loans shall conform to the Borrower's Underwriting Guidelines or the Lender shall have received Underwriting Guidelines for such Mortgage Loans acceptable to the Lender in its reasonable discretion;
(k) the Lender shall have received all information requested from the Borrower relating to Interest Rate Protection Agreements pursuant to Section 7.25, and the Lender shall have reasonably determined that such Interest Rate Protection Agreements adequately protect the Borrower from interest rate fluctuations; and
(l) the Lender shall have received, no later than 10:00 a.m. three (3) days prior to the requested Funding Date, an Instruction Letter, executed by the Borrower, with the related Servicing Agreement attached thereto, which such Servicing Agreement shall be in form and substance acceptable to Lender. Each request for a borrowing by the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in this Section (both as of the date of such notice, request or confirmation and as of the date of such borrowing).
Appears in 1 contract
Sources: Master Loan and Security Agreement (MortgageIT Holdings, Inc.)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to Borrower (including the Borrower as provided for under this Loan Agreement initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no No Default or Event of Default shall have occurred and no Cash Trap Period shall be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the The representations and warranties made by each Loan Party in Section 6 hereofthis Agreement, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the LenderAgent, the Lender Agent and Lenders shall have received an officer’s certificate signed by a Responsible Officer of the Borrower certifying as to that the truth above is true and accuracy of the aboveaccurate in all material respects, which certificate shall be specifically include a statement that Borrower is in form material compliance with all governmental licenses and substance acceptable authorizations and is qualified to do business and in good standing in all required jurisdictions to the Lender extent any failure to comply or qualify would be reasonably expected to result in its sole, reasonable discretiona material adverse effect on the Lenders;
(c) the The aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the lesser of the Borrowing Base and the Maximum Loan AmountCredit;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 hereof, the Lender shall have completed its due diligence review of such documents, records, agreements, instruments, mortgaged properties or information relating to such Advance as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender Agent shall have received a Notice of Borrowing and all REO Property Schedule with respect to the REO Properties to be included in the Borrowing Base, to the extent not previously provided to Agent and a calculation of the Borrowing Base based on such information;
(e) Agent or its designee shall have received any other documents required under Section 2.03;reasonably requested by Agent with reasonable notice to Borrower; and
(f) To the Lender extent not previously provided to Agent, Borrower shall have received delivered to Agent a copy of the following documents, Property Management Agreement with respect to each of which Contributed REO Property. Each request for a borrowing by the Borrower hereunder shall be satisfactory constitute a certification by Borrower to the Lender effect set forth in form this Section 3.2 (both as of the date of such notice, request or confirmation and substance:as of the date of such borrowing). With respect to any Advance, Agent may conclusively rely upon, and shall incur no liability to Borrower in acting upon, any request or other communication that Agent reasonably believes to have been given or made by a person authorized to request an Advance on Borrower’s behalf.
Appears in 1 contract
Sources: Credit and Security Agreement (Altisource Residential Corp)
Initial and Subsequent Advances. Subject to the terms and provisions of the Post-Closing Agreement, the The making of each Advance to the Borrower as provided for under this Loan Agreement (including the initial Advance) on any Business Day is subject to the following further conditions precedent precedent, both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof:
(a) no Default or Default, Event of Default or event which, in the sole judgment of the Lender, may have a Material Adverse Effect shall have occurred and be continuing;
(b) both immediately prior to the making of such Advance and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Loan Party the Borrower and Guarantor in Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and complete on and as of the date of the making of such Advance in all material respects (in the case of the representations and warranties set forth on Schedule 1 solely with respect to Mortgage Loans included in the Borrowing Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). At the request of the Lender, the Lender shall have received an officer’s certificate signed by a Responsible Officer of the Borrower or certifying as to the truth and accuracy of the above, which certificate shall be specifically include a statement that the Borrower is in form compliance with all governmental licenses and substance acceptable authorizations and is qualified to the Lender do business and in its sole, reasonable discretiongood standing in all required jurisdictions;
(c) the aggregate outstanding principal amount of the Advances funded hereunder shall not exceed the Maximum Loan AmountBorrowing Base;
(d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to Section 10.15 11.16 hereof, the Lender shall have completed its due diligence review of the Mortgage Loan Documents for each Advance and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Advance Advances as the Lender in its reasonable discretion deems appropriate to review and such review shall be satisfactory to the Lender in its reasonable discretion;
(e) the Lender shall have received a Notice of Borrowing and Pledge, Asset Schedule and Asset Data Transmission and all other documents required under Section 2.03;
(f) the Lender shall have received from the following documentsCustodian, a Custodian Asset Transmission and one or more Trust Receipts in respect of Mortgage Loans to be pledged hereunder on such Business Day and an Exception Report, in each case dated such Business Day and duly completed;
(g) in the event that the Mortgage Loans to be pledged would cause the aggregate outstanding principal balance of which shall be satisfactory Mortgage Loans pledged secured by Mortgaged Property from any state to exceed 10% of the aggregate outstanding principal balance of Mortgage Loans pledged hereunder, then the Borrower shall, upon request by the Lender, deliver an opinion of counsel acceptable to the Lender in such state, substantially in the form of items number 12 and 13 of Exhibit C:
(h) with respect to any Mortgage Loan that was funded in the name of or acquired by a Qualified Originator which is an Affiliate of the Borrower, the Lender may, in its sole discretion, require the Borrower to provide evidence sufficient to satisfy the Lender that such Mortgage Loan was acquired in a legal sale, including without limitation, an opinion, in form and substancesubstance and from an attorney, in both cases, acceptable to the Lender in its sole discretion, that such Mortgage Loan was acquired in a legal sale;
(i) none of the following shall have occurred and/or be continuing:
(i) a catastrophic event or events shall have occurred resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities for a period of (or reasonably expected to be) at least 30 consecutive days and the same has resulted in the Lender not being able to finance any Advances through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such catastrophic event or events;
(ii) a catastrophic event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans for a period of (or reasonably expected to be) at least 30 consecutive days and the same results in the Lender not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such catastrophic event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Lender which affects (or can reasonably be expected to affect) materially and adversely the ability of the Lender to fund its obligations under this Loan Agreement and the Lender shall have given notice thereof pursuant to Section 11.02 hereof to the Borrower at least 30 days prior to the requested Funding Date;
Appears in 1 contract
Sources: Master Loan and Security Agreement (New Century Financial Corp)