Extensions of Credit. (a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (each, an “Extension of Credit”) in which Seller Bank or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller Bank or any Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original promissory notes or other evidences of indebtedness, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller Bank or one of its Subsidiaries and the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy and Equity Exception) and (iv) is in full force and effect. (b) Section 3.19(b) of the Seller Disclosure Schedule sets forth a complete and accurate list of all Extensions of Credit that, as of September 30, 2021, were classified by Seller Bank as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch” or words of similar import. Complete and accurate copies of the currently effective lending policies and practices of Seller Bank and its Subsidiaries have been made available to Purchaser. (c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank or any Subsidiary of Seller Bank is a creditor has been solicited and originated and is administered and, if serviced by Seller Bank, serviced, and the relevant files are being maintained, in accordance with the relevant loan documents, Seller Bank’s or, if applicable, a Subsidiary of Seller Bank’s, underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable Law. (d) Except as would not reasonably be expected to be material to Seller Bank and its Subsidiaries, taken as a whole, since January 1, 2020 through the date hereof, there has been (i) no written demand made to Seller Bank or any of its Subsidiaries for the repurchase of any Extensions of Credit due to the alleged breach of any representation, warranty or covenant with respect to such Extensions of Credit or due to alleged fraud relating thereto, or (ii) to the Knowledge of Seller Bank and other than on account of an obligor’s insolvency or claimed insolvency, no claim in an amount in excess of $750,000 by an obligor of any Extension of
Appears in 1 contract
Samples: Share Purchase Agreement
Extensions of Credit. (a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (each, an “Extension of Credit”) in which Seller the Bank or any Transferred Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller the Bank or any Transferred Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original promissory notes or other evidences of indebtedness, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller the Bank or one of its the Transferred Subsidiaries and the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy and Equity Exception) and (iv) is in full force and effect.effect.
(b) Section 3.19(b) of the Seller Sellers’ Disclosure Schedule sets forth a complete and accurate list of all Extensions of Credit that, as of September June 30, 2021, were classified by Seller the Bank as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch” or words of similar import. Complete and accurate copies of the currently effective lending policies and practices of Seller the Bank and its the Transferred Subsidiaries have been made available to Purchaser.the Purchaser.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller the Bank or any Transferred Subsidiary of Seller Bank is a creditor has been solicited and originated and is administered and, if serviced by Seller the Bank, serviced, and the relevant files are being maintained, in accordance with the relevant loan documents, Seller the Bank’s or, if applicable, a Subsidiary of Seller Bank’sthe Transferred Subsidiaries’, underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller the Bank and its the Transferred Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable Law.
(d) The Sellers have previously delivered to the Purchaser spreadsheets containing information regarding certain categories of loans made by the Bank and the Transferred Subsidiaries as of June 30, 2021 (the “Loan Data File”) and the information contained in the Loan Data File was complete and accurate in all material respects as of such date.
(e) Except as would not reasonably be expected to be material to Seller the Bank and its the Transferred Subsidiaries, taken as a whole, since January 1, 2020 through the date hereof, there has been (i) no written demand made to Seller the Bank or any of its the Transferred Subsidiaries for the repurchase of any Extensions of Credit due to the alleged breach of any representation, warranty or covenant with respect to such Extensions of Credit or due to alleged fraud relating thereto, or (ii) to the Knowledge of Seller Bank and other than on account of an obligor’s insolvency or claimed insolvency, no claim in an amount in excess of $750,000 by an obligor of any Extension ofof Credit asserting that the obligor is entitled to damages associated with the conduct of the Bank or any Transferred Subsidiary in connection with such Extension of Credit; provided, that in each case of clauses (i) and (ii), such Extension of Credit shall not include Excluded Assets and Liabilities.
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Extensions of Credit. (ai) Except as would nothas not had, individually or in the aggregatenor is reasonably likely to have, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (eachcollectively, an “Extension Extensions of Credit”) in which Seller made or entered into by the Bank or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller Bank or any Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) its Subsidiaries is evidenced by original promissory notes or other evidences of indebtednessIndebtedness that is true and genuine, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller the Bank or one of its Subsidiaries and and, to the Sellers’ knowledge, the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and Equity Exceptionsimilar Laws of general applicability relating to or affecting creditors’ rights or by general equity principles) and (iv) is are in full force and effect.
(b) Section 3.19(b) effect, unless such Extension of Credit has been modified pursuant to a modification agreement or similar instrument, a copy of which is contained within the Seller Disclosure Schedule sets forth a complete and accurate list of applicable loan file. The Sellers have identified within the applicable loan file all Extensions of Credit thatthat have been classified by the Bank or its Subsidiaries, as of September 30March 31, 20212012, were classified by Seller Bank as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch,” “Past Due” or words of similar import. Complete .
(ii) The allowances for loan losses and accurate copies for credit losses contained in the Bank Financial Statements were established in accordance with the requirements of GAAP and the bank regulators to provide for possible losses on loans (including accrued interest receivable) and credit commitments (including stand-by letters of credit) outstanding as of the currently effective lending policies and practices date of Seller Bank and its Subsidiaries have been the applicable balance sheet.
(iii) To the Sellers’ knowledge, the information contained in the loan files made available to Purchaser.Purchaser prior to date of this Agreement was accurate and complete in all material respects as of the date set forth therein.
(civ) Except as would nothas not had, individually or in the aggregatenor is reasonably likely to have, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank (including Extensions of Credit held for resale or any Subsidiary of Seller Bank is a creditor previously sold to investors) has been solicited and originated and is administered and, during the period of time, if any, in which such Extension of Credit was administered and serviced by Seller the Bank, was administered and serviced, and and, during the period of time in which such Extension of Credit was originated, held or serviced by the Bank, the relevant files are being were maintained, in all material respects in accordance with the relevant loan documents, Seller the Bank’s orunderwriting standards (and, in the case of Extensions of Credit held for resale or previously sold to investors, the underwriting standards, if applicableany, of the applicable investors) and applicable Laws.
(v) Except as has not had, nor is reasonably likely to have, a Subsidiary Material Adverse Effect, each Extension of Seller Credit payable to Bank or its Subsidiaries (A) was originated or purchased by Bank or its Subsidiaries and its principal balance as shown on Bank’s’s books and records is true and correct as of the date indicated therein, (B) contains customary and enforceable provisions such that the rights and remedies of the holder thereof shall be adequate for the practical realization against any collateral therefor, (C) includes a loan file and a credit file in possession of the Bank or its Subsidiaries that contains all relevant documents (including title insurance policies) required by the Bank in accordance with its customary policies and procedures, and (D) complies, and at the time the Extension of Credit was originated or modified complied, with the Bank’s underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; federal, state, provincial and local Laws.
(iivi) Except as has not had, nor is reasonably likely to have, a Material Adverse Effect, with respect to each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit that is secured, Bank or the applicable Subsidiary has a valid and enforceable Lien on the collateral described in which it acts as the lead lender or servicer documents relating to such Extension of Credit, has all documentation needed to enforce such Lien, and each such Lien is assignable and has complied with the priority described in such documents (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors’ rights or by general equity principles).
(vii) Except as has not had, nor is reasonably likely to have, a Material Adverse Effect, (A) each Extension of Credit included in a pool of loans originated, acquired, serviced or securitized by Bank or its duties as Subsidiaries meets all eligibility requirements (including all applicable requirements for obtaining mortgage insurance certificates and loan guaranty certificates) for inclusion in such pool, (B) all such pools have been finally certified or recertified to the extent required under applicable Lawlaws, rules and regulations, except where the time for certification or recertification has not yet expired and (C) no such pools have been improperly certified, and no Extension of Credit has been bought out of any such pool without all required approvals of the applicable investors.
(dviii) Except as would not reasonably be expected None of the agreements pursuant to be material to Seller which the Bank and its Subsidiaries, taken as a whole, since January 1, 2020 through the date hereof, there has been (i) no written demand made to Seller Bank or any of its Subsidiaries for the repurchase of any sold Extensions of Credit due or pools of Extensions of Credit or participations in Extensions of Credit or pools of Extensions of Credit contains any obligation to the alleged breach of any representation, warranty or covenant with respect to repurchase such Extensions of Credit or due interests therein, other than (A) customary repurchase obligations arising upon breach of representations and warranties, covenants and (B) any customary repurchase obligations that the Bank may be subject to alleged fraud relating theretoin its capacity as an issuer of National Housing Act residential mortgage bond securities issued pursuant to Canada Mortgage and Housing Corporation’s NHA MBS or Canada Mortgage Bond Programs, or (ii) pursuant to the Knowledge terms of Seller Bank and those programs or customary swap transactions entered into in connection with those programs.
(ix) As of the date of this Agreement, none of the Target Companies own any asset that is classified as other than on account of an obligor’s insolvency or claimed insolvency, no claim in an amount in excess of $750,000 by an obligor of any Extension ofreal estate owned.
Appears in 1 contract
Extensions of Credit. (a1) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (eachcollectively, an “Extension Extensions of Credit”) in which Seller Bank made or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into by the Corporation or acquired by Seller Bank or any a Corporation Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original promissory notes or other evidences of indebtedness, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller Bank it or one of its Corporation Subsidiaries and and, to the Corporation’s knowledge, the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and Equity Exceptionsimilar laws of general applicability relating to or affecting creditors’ rights or by general equity principles) and (iv) is are in full force and effect.
effect. Neither the Corporation or any Corporation Subsidiary is in breach of any provision of or in default (bor, with the giving of notice or lapse of time or both, would be in default) Section 3.19(b) under, and has not taken any action resulting in the termination of, acceleration of the Seller Disclosure Schedule sets forth performance required by, or resulting in a right of termination or acceleration under, any Extension of Credit. The Corporation has Previously Disclosed a complete and accurate correct list of all Extensions of Credit thatmade by the Corporation or a Corporation Subsidiary, as of September 30the date hereof, 2021, were that have been classified by Seller Bank it or any Governmental Entity as “Special Mention,” ”, “Substandard,” ”, “Doubtful,” ”, “Loss,” ”, “Classified,” ”, “Criticized,” ”, “Watch”, “Past Due” or words of similar import. Complete and accurate copies of the currently effective lending policies and practices of Seller Bank and its Subsidiaries have been made available to Purchaser..
(c2) Except as would not, individually or The allowance for loan losses contained in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank or any Subsidiary of Seller Bank is a creditor has been solicited and originated and is administered and, if serviced by Seller Bank, serviced, and the relevant files are being maintained, Corporation Financial Statements was established in accordance with the relevant past practices and experiences of the Corporation and the Corporation Subsidiaries, and the allowance for loan documents, Seller Bank’s or, if applicable, a Subsidiary losses shown on any interim unaudited balance sheet since the date of Seller Bank’s, underwriting standards the Corporation Financial Statements was adequate under and in accordance with all the requirements of applicable Laws GAAP to provide for possible losses on loans (including those accrued interest receivable) and credit commitments (including stand-by letters of credit) outstanding as of the Small Business Administration) and applicable requirements date of any government-sponsored enterprise program; and (ii) each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable Lawsuch balance sheet.
(d3) Except as would not reasonably be expected The Corporation has made available to be material Investor true and correct copies all loan files requested by the Investor.
(4) The Corporation has previously delivered to Seller Bank and its Subsidiaries, taken as a whole, since January 1, 2020 through the date hereof, there has been (i) no written demand Investor spreadsheets containing information regarding all loans made to Seller Bank by the Corporation or any of its Corporation Subsidiaries for as of March 4, 2010 (the repurchase of any Extensions of Credit due “Loan Data File”). The information contained in the Loan Data File has not materially changed from March 4, 2010 to the alleged breach of any representation, warranty or covenant with respect to such Extensions of Credit or due to alleged fraud relating thereto, or (ii) to the Knowledge of Seller Bank and other than on account of an obligor’s insolvency or claimed insolvency, no claim in an amount in excess of $750,000 by an obligor of any Extension ofClosing.
Appears in 1 contract
Samples: Investment Agreement (BNC Bancorp)
Extensions of Credit. (a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (each, an “Extension of Credit”) in which Seller Bank Holdco or any Subsidiary of Seller Bank Holdco is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller Bank Holdco or any Subsidiary of Seller Bank Holdco in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original promissory notes or other evidences of indebtedness, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller Bank Holdco or one of its Subsidiaries and the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy and Equity Exception) and (iv) is in full force and effect.effect.
(b) Section 3.19(b) of the Seller Disclosure Schedule sets forth a complete and accurate list of all Extensions of Credit that, as of September 30, 2021, were classified by Seller Bank Holdco or one of its Subsidiaries as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch” or words of similar import. Complete and accurate copies of the currently effective lending policies and practices of Seller Bank Holdco and its Subsidiaries have been made available to Purchaser.Purchaser.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank Holdco or any Subsidiary of Seller Bank Holdco is a creditor has been solicited and originated and is administered and, if serviced by Seller BankHoldco or any Subsidiary of Seller Holdco, serviced, and the relevant files are being maintained, in accordance with the relevant loan documents, Seller BankHoldco’s or, if applicable, a Subsidiary of Seller BankHoldco’s, underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller Bank Holdco and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable Law.
(d) Except as would not reasonably be expected to be material to Seller Bank Holdco and its Subsidiaries, taken as a whole, since January 1, 2020 through the date hereof, there has been (i) no written demand made to Seller Bank Holdco or any of its Subsidiaries for the repurchase of any Extensions of Credit due to the alleged breach of any representation, warranty or covenant with respect to such Extensions of Credit or due to alleged fraud relating thereto, or (ii) to the Knowledge of Seller Bank and other than on account of an obligor’s insolvency or claimed insolvency, no claim in an amount in excess of $750,000 by an obligor of any Extension ofor
Appears in 1 contract
Samples: Share Purchase Agreement
Extensions of Credit. (a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (each, an “Each Extension of Credit”) in which Seller Bank or any Subsidiary of Seller Bank is a creditor Credit (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller Bank or any Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original promissory notes or other evidences of indebtednessindebtedness that are true, whichgenuine and what they purport to be, together with all (ii) to the extent carried on the books and records of the Seller Bank as secured Extensions of Credit, has been secured by valid charges, mortgages, pledges, security agreements interests, restrictions, claims or other Liens, which have been perfected and guarantees, are (iii) is a valid and legally binding obligations obligation of the Seller Bank and, to the Knowledge of Seller Bank Bank, the obligor or one of its Subsidiaries and the counterparty or counterparties obligors thereto, are and, assuming due authorization, execution and delivery thereof by such obligor or obligors, is enforceable in accordance with their its terms (except as enforcement may be limited by subject to the Bankruptcy and Equity Exception) and (iv) ). Notwithstanding the foregoing, no representation or warranty is in full force and effect.made as to the sufficiency of the collateral securing or the collectability of any Extension of Credit.
(b) As of two Business Days prior to the date of this Agreement, except as set forth in Section 3.19(b4.20(b) of the Seller Bank Disclosure Schedule, the Seller Bank is not a party to any Extension of Credit, which as of the Balance Sheet Date, had an outstanding balance of one hundred thousand dollars ($100,000) or more and under the terms of which the obligor or obligors thereto were, as of the Balance Sheet Date, over 90 days or more delinquent in payment of principal or interest. Section 4.20(b) of the Seller Bank Disclosure Schedule sets forth a true, correct and complete and accurate list list, as of two Business Days prior to the date of this Agreement, of (A) all of the Extensions of Credit that, as of September 30the Balance Sheet Date, 2021, had an outstanding balance of one hundred thousand dollars ($100,000) or more and were classified by the Seller Bank as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “WatchCredit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import. Complete , and accurate copies such schedule sets forth, as of the currently effective lending policies Balance Sheet Date, the aggregate principal amount of and practices accrued and unpaid interest on each such Extension of Credit and (B) each asset of the Seller Bank and or any of its Subsidiaries have been made available to Purchaser.that, as of the Balance Sheet Date, was classified as “Other Real Estate Owned” and the book value thereof.
(c) Except as would not, individually or in the aggregate, reasonably be expected to not have a Seller Bank Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank or any Subsidiary of Seller Bank was solicited and originated, and is a creditor and has been solicited and originated and is administered and, if serviced by Seller Bankwhere applicable, serviced, and the relevant loan files are being maintained, in all material respects, in accordance with the relevant loan notes or other credit or security documents, the written underwriting standards of the Seller Bank’s orBank (and, in the case of Extensions of Credit held for resale to investors, the underwriting standards, if applicableany, a Subsidiary of Seller Bank’s, underwriting standards the applicable investors) and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable LawLaws.
(d) Except as would not reasonably be expected to be material to set forth in Section 4.20(d) of the Seller Bank and its SubsidiariesDisclosure Schedule, taken as a wholenone of the agreements entered into, since January 1, 2020 through pursuant to which the date hereof, there has been (i) no written demand made to Seller Bank or any of its Subsidiaries for the repurchase of any has sold Extensions of Credit due or pools of Extensions of Credit or participations in Extensions of Credit or pools of Extensions of Credit, contains any obligation to the alleged breach of any representation, warranty or covenant with respect to repurchase such Extensions of Credit or due interests therein solely on account of a payment default by the obligor on any such Extensions of Credit.
(e) Except as set forth in Section 4.20(e) of the Seller Bank Disclosure Schedule, the Seller Bank has not now nor has it since December 31, 2014 been, subject to alleged fraud relating theretoany fine, suspension, settlement or other contract or other administrative agreement or sanction by, or (ii) any reduction in any loan purchase commitment from, any Governmental Authority relating to the Knowledge origination, sale or servicing of mortgage or consumer Extensions of Credit. The Seller Bank does not administer or service any loan, note or borrowing not originated and owned by the Seller Bank, including whether as a servicer, special servicer, sub-servicer, master servicer or otherwise. The Seller Bank is in compliance in all material respects with all eligibility requirements under any correspondent arrangement pursuant to which the Seller Bank originates Extensions of Credit, and has not since December 31, 2014 been subject to any fine, suspension, settlement or other agreement or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from any mortgage finance agency relating to the origination or sale of Extensions of Credit. The Seller Bank, as seller of any Extensions of Credit, is not obligated to repurchase any Extensions of Credit.
(f) The Seller Bank has not extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal Extension of Credit to or for any director, executive officer or 5% or greater Shareholder of the Seller Bank, except as permitted by Federal Reserve Regulation O. Section 4.20 of the Seller Bank Disclosure Schedule sets forth a list of all Extensions of Credit as of the date hereof by the Seller Bank and its Subsidiaries to any directors, executive officers and principal shareholders (as such terms are defined in Regulation O of the Federal Reserve (12 C.F.R. Part 215)) of the Seller Bank or any of its Subsidiaries. There are no employee, officer, director or other affiliate Extensions of Credit on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on account which the borrower is paying a rate which was below market at the time the Extension of an obligor’s insolvency Credit was originated. All such Extensions of Credit are and were originated in compliance in all material respects with all applicable Laws. No director or claimed insolvencyexecutive officer of the Seller Bank has any interest in any contract or property (real or personal, no claim in an amount in excess tangible or intangible), used in, or pertaining to, the business of $750,000 by an obligor of any Extension ofthe Seller Bank.
Appears in 1 contract
Extensions of Credit. (a1) Except as where the failure to do so would notnot result, individually or in the aggregate, would not reasonably be expected to have result, in a Material Adverse EffectEffect with respect to the Company, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (eachcollectively, an “Extension Extensions of Credit”) in which Seller Bank made or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into by the Company or acquired by Seller Bank or any Subsidiary one of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) its Subsidiaries is evidenced by original promissory notes notes, mortgages or other evidences of indebtednessIndebtedness, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller Bank the Company or one of its Subsidiaries and and, to the Sellers’ Knowledge, the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy and Equity Exceptionone or more Permitted Enforceability Exceptions) and (iv) is are in full force and effect.
effect. Other than Extensions of Credit that have been Previously Disclosed pursuant to the immediately succeeding sentence, neither the Company nor any of its Subsidiaries, and, to the Sellers’ Knowledge, any counterparty or counterparties, is in breach of any provisions of or in default (bor, with the giving of notice or lapse of time or both, would be in default) Section 3.19(b) under, and has not taken any action resulting in the termination of, acceleration of, performance required by, or resulting in a right of termination or acceleration under, any Extension of Credit, except as would not, in the Seller Disclosure Schedule sets forth aggregate, reasonably be likely to be material to the Company. The Company has Previously Disclosed a complete and accurate correct list of all Extensions of Credit that, as of September 30, 2021, were that have been classified by Seller Bank it or any Governmental Entity as “Special Mention,” ”, “Substandard,” ”, “Doubtful,” ”, or “Loss,” “Classified,” “Criticized,” “Watch” or words of similar import. Complete and accurate copies as of the currently effective lending policies month end prior to the date hereof, and all Extensions of Credit in excess of five hundred thousand dollars ($500,000) that are more than thirty (30) days past due as of the month end prior to the date hereof.
(2) The provisions for loan losses contained in the Company Financial Statements were established in accordance with past practices and experiences of Seller Bank the Company and its Subsidiaries have been made available to Purchaser.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank or any Subsidiary of Seller Bank is a creditor has been solicited and originated and is administered and, if serviced by Seller Bank, serviced, and the relevant files are being maintained, in accordance with the relevant loan documents, Seller Bank’s or, if applicable, a Subsidiary of Seller Bank’s, underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) GAAP and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable Laware adequate thereunder.
(d3) Except as would not reasonably be expected The Company has made available to be material Purchaser true and correct copies of the loan files related to Seller Bank each individual loan, note, borrowing arrangement and other commitment for credit relationships with a customer commitment greater than or equal to one million dollars ($1,000,000) between the Company or any of its Subsidiaries, taken on the one hand, and a single third-party obligor, on the other hand, as a whole, since January 1, 2020 through of the date hereof, there a list of which has been Previously Disclosed.
(i4) no written demand made The Company is not subject to Seller Bank any Contract pursuant to which the Company or any of its Subsidiaries for the repurchase of has sold any Extensions of Credit due or pools of, or participations in, Extensions of Credit containing any obligation to the alleged breach repurchase part or all of any representation, warranty or covenant with respect to such Extensions of Credit or due such pools or participations.
(5) The Company has previously delivered to alleged fraud relating theretoPurchaser a loan data tape in Excel format disclosing information regarding all loans, or (ii) to the Knowledge of Seller Bank notes, borrowing arrangements and other than on account commitments for credit relationships by the Company or any of an obligor’s insolvency or claimed insolvencyits Subsidiaries as of the date previously delivered, no claim which information is accurate and complete in an amount in excess all material respects as of $750,000 by an obligor of any Extension ofthe date hereof.
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Extensions of Credit. (ai) Except as would nothas not had, individually or in the aggregatenor is reasonably likely to have, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (eachcollectively, an “Extension Extensions of Credit”) in which Seller made or entered into by the Bank or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller Bank or any Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) its Subsidiaries is evidenced by original promissory notes or other evidences of indebtednessIndebtedness that is true and genuine, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller the Bank or one of its Subsidiaries and and, to the Sellers’ knowledge, the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and Equity Exceptionsimilar Laws of general applicability relating to or affecting creditors’ rights or by general equity principles) and (iv) is are in full force and effect.
(b) Section 3.19(b) effect, unless such Extension of Credit has been modified pursuant to a modification agreement or similar instrument, a copy of which is contained within the Seller Disclosure Schedule sets forth applicable loan file. The Sellers have Previously Disclosed a complete and accurate correct list of all Extensions of Credit thatthat have been classified by the Bank or its Subsidiaries, as of September 30March 31, 20212011, were classified by Seller Bank as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch,” “Past Due” or words of similar import. Complete .
(ii) The allowances for loan losses and accurate for credit losses contained in the Bank Financial Statements were established in accordance with the requirements of GAAP and the bank regulators to provide for possible losses on loans (including accrued interest receivable) and credit commitments (including stand-by letters of credit) outstanding as of the date of such balance sheet.
(iii) Prior to the date hereof, the Sellers have made available to Purchaser true and correct copies of the currently effective lending policies loan files related to each individual loan, note, borrowing arrangement and practices other commitment for the 20 largest credit relationships between the Bank or its Subsidiaries, on the one hand, and a single third-party obligor, on the other hand (the “Loan Data File”). To the Sellers’ knowledge, the information contained in the Loan Data File was accurate and complete in all material respects as of Seller Bank and its Subsidiaries have been made available to Purchaser.the date set forth therein.
(civ) Except as would nothas not had, individually or in the aggregatenor is reasonably likely to have, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank (including Extensions of Credit held for resale or any Subsidiary of Seller Bank is a creditor previously sold to investors) has been solicited and originated and is administered and, during the period of time, if any, in which such Extension of Credit was administered and serviced by Seller the Bank, was administered and serviced, and and, during the period of time in which such Extension of Credit was originated, held or serviced by the Bank, the relevant files are being were maintained, in all material respects in accordance with the relevant loan documents, Seller the Bank’s orunderwriting standards (and, in the case of Extensions of Credit held for resale or previously sold to investors, the underwriting standards, if applicableany, of the applicable investors) and with all applicable requirements of federal, state and local Laws.
(v) Except as has not had, nor is reasonably likely to have, a Subsidiary Material Adverse Effect, each Extension of Seller Credit payable to Bank or its Subsidiaries (i) was originated or purchased by Bank or its Subsidiaries and its principal balance as shown on Bank’s’s books and records is true and correct as of the date indicated therein, (ii) contains customary and enforceable provisions such that the rights and remedies of the holder thereof shall be adequate for the practical realization against any collateral therefor, (iii) includes a loan file and a credit file in possession of the Bank or its Subsidiaries that contains all relevant documents (including title insurance policies) required by the Bank in accordance with its customary policies and procedures, and (iv) complies, and at the time the Extension of Credit was originated or modified complied, with the Bank’s underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; federal, state and local Laws.
(iivi) Except as has not had, nor is reasonably likely to have, a Material Adverse Effect, with respect to each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit payable to Bank or its Subsidiaries that is secured, Bank or the applicable Subsidiary has a valid and enforceable Lien on the collateral described in which it acts as the lead lender or servicer documents relating to such Extension of Credit, has all documentation needed to enforce such Lien, and each such Lien is assignable and has complied with the priority described in such documents (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors’ rights or by general equity principles).
(vii) Except as has not had, nor is reasonably likely to have, a Material Adverse Effect, (A) each Extension of Credit included in a pool of loans originated, acquired, serviced or securitized by Bank or its duties as Subsidiaries meets all eligibility requirements (including all applicable requirements for obtaining mortgage insurance certificates and loan guaranty certificates) for inclusion in such pool, (B) all such pools have been finally certified or recertified to the extent required under applicable Lawlaws, rules and regulations, except where the time for certification or recertification has not yet expired and (C) no such pools have been improperly certified, and no Extension of Credit has been bought out of any such pool without all required approvals of the applicable investors.
(dviii) Except as would not reasonably be expected None of the agreements pursuant to be material to Seller which the Bank and its Subsidiaries, taken as a whole, since January 1, 2020 through the date hereof, there has been (i) no written demand made to Seller Bank or any of its Subsidiaries for the repurchase of any sold Extensions of Credit due or pools of Extensions of Credit or participations in Extensions of Credit or pools of Extensions of Credit contain any obligation to the alleged breach of any representation, warranty or covenant with respect to repurchase such Extensions of Credit or due to alleged fraud relating theretointerests therein, or (ii) to the Knowledge other than repurchase obligations arising upon breach of Seller Bank representations and warranties, covenants and other than on account obligations.
(ix) Section 5.02(z)(ix) of an obligor’s insolvency or claimed insolvencythe Seller Disclosure Schedule lists each asset of a US HoldCo Company that as of March 31, no claim in an amount in excess 2011 was classified as other real estate owned and the book value thereof as of $750,000 by an obligor of any Extension ofsuch date.
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Samples: Purchase and Sale Agreement (Capital One Financial Corp)
Extensions of Credit. (a) Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each :
(1) Each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (eachcollectively, an “Extension Extensions of Credit”) in which Seller Bank or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired held by Seller Bank or any Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original a promissory notes note or other evidences evidence of indebtedness, which, together with all security agreements and guarantees, are is a valid and legally binding obligations obligation of Seller Bank or one and, to the Knowledge of its Subsidiaries and Seller, of the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and Equity Exceptionsimilar laws of general applicability relating to or affecting creditors’ rights or by general equity principles) and (iv) is are in full force and effect.
(b) Section 3.19(b) of the effect. Seller Disclosure Schedule sets forth has Previously Disclosed a complete and accurate correct list of all Extensions of Credit in excess of $5,000,000 that, as of September 30March 31, 20212019, were classified by Seller Bank as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch” or words of similar import. Complete and accurate copies of the currently effective lending policies and practices of Seller Bank and its Subsidiaries have been made available to Purchaser..
(c2) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each outstanding Extension of Credit in which Seller originally underwritten by Bank (including Extensions of Credit held for resale or any Subsidiary of Seller Bank is a creditor previously sold to investors) has been solicited and originated and is administered and, if serviced by Seller Bankwhere applicable, serviced, and the relevant Extension of Credit files are being maintained, maintained in accordance with (a) the relevant loan or other credit or security documents, Seller (b) in the case of Extensions of Credit originally underwritten by Bank, Bank’s or, if applicable, a Subsidiary of Seller Bank’s, written underwriting standards and with all requirements of applicable Laws (including those of in effect at the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any time such Extension of Credit was originated, (c) in which it acts as the lead lender or servicer case of Extensions of Credit held for resale to investors, the underwriting standards, if any, of the applicable investors, and has complied with its duties as required under (d) applicable Law.
(d3) Except as would not reasonably be expected None of the agreements pursuant to be material to Seller which Bank and its Subsidiaries, taken as a whole, has sold Extensions of Credit or pools of Extensions of Credit or participations in Extensions of Credit or pools of Extensions of Credit since January 1, 2020 through the date hereof, there has been (i) no written demand made 2016 contains any obligation to Seller Bank or any of its Subsidiaries for the repurchase of any Extensions of Credit due to the alleged breach of any representation, warranty or covenant with respect to such Extensions of Credit or due interests therein, other than repurchase obligations arising upon breach of representations and warranties, covenants and other obligations.
(4) Bank is not now nor has it ever been since January 1, 2016, subject to alleged fraud relating theretoany material fine, suspension, settlement or other administrative agreement or sanction by, or (ii) any material reduction in any loan purchase commitment from, any Governmental Authority relating to the Knowledge origination, sale or servicing of Seller mortgages or consumer loans.
(5) With respect to each Extension of Credit that is secured by collateral, Bank has a valid and other than on account of an obligor’s insolvency enforceable security interest or claimed insolvency, no claim lien in an amount in excess of $750,000 by an obligor of any Extension ofsuch collateral.
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Extensions of Credit. (a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit in which Seller Bank is a creditor or which has been originated by Seller Bank (each, an “Extension of Credit”) in which Seller Bank or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller Bank or any Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original promissory notes or other evidences of indebtedness, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller Bank or one of its Subsidiaries and the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy and Equity Exception) and (iv) is in full force and effect.effect.
(b) Section 3.19(b3.24(b) of the Seller Disclosure Schedule Schedules sets forth a complete and accurate list of all Extensions of Credit that, as of September June 30, 20212024, were classified by Seller Bank as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch” or words of similar import. Complete and accurate copies of the currently effective lending policies and practices of Seller Bank and its Subsidiaries have been made available to Purchaser.Purchaser.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank or any Subsidiary of Seller Bank is a creditor has been solicited and originated and is administered and, if serviced by Seller Bank, and serviced, and the relevant files are being maintained, in accordance with the relevant loan documentsLoan Documents, Seller Bank’s or, if applicable, a Subsidiary of Seller Bank’s, underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable Law.
(d) Seller Bank has previously made available to Purchaser spreadsheets containing information regarding certain categories of loans made by Seller Bank as of June 30, 2024 (the “Loan Data File”) and the information contained in the Loan Data File made available to Purchaser was complete and accurate in all material respects as of June 30, 2024.
(e) Except as would not reasonably be expected to be material to Seller Bank and its Subsidiaries, taken as have a wholeMaterial Adverse Effect, since January 1, 2020 2024 through the date hereof, there has been (i) no written demand made to Seller Bank or any of its Subsidiaries for the repurchase of any Extensions of Credit due to the alleged breach of any representation, warranty or covenant with respect to such Extensions of Credit or due to alleged fraud relating thereto, or (ii) to the Knowledge of Seller Bank and other than on account of an obligor’s insolvency or claimed insolvency, no claim in an amount in excess of $750,000 50,000 by an obligor of any Extension ofof Credit asserting that the obligor is entitled to damages associated with the conduct of Seller Bank in connection with such Extension of Credit.
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Extensions of Credit. (a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit (each, an “Extension of Credit”) in which Seller Bank or any Subsidiary of Seller Bank is a creditor (i) complies with all applicable Laws, (ii) has been made, entered into or acquired by Seller Bank or any Subsidiary of Seller Bank in accordance with board of director-approved loan policies, management policies and procedures or customary industry standards, as applicable, (iii) is evidenced by original promissory notes or other evidences of indebtedness, which, together with all security agreements and guarantees, are valid and legally binding obligations of Seller Bank or one of its Subsidiaries and the counterparty or counterparties thereto, are enforceable in accordance with their terms (except as enforcement may be limited by the Bankruptcy and Equity Exception) and (iv) is in full force and effect.effect.
(b) Section 3.19(b) of the Seller Disclosure Schedule sets forth a complete and accurate list of all Extensions of Credit that, as of September 30, 2021, were classified by Seller Bank as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Watch” or words of similar import. Complete and accurate copies of the currently effective lending policies and practices of Seller Bank and its Subsidiaries have been made available to Purchaser.Purchaser.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each outstanding Extension of Credit in which Seller Bank or any Subsidiary of Seller Bank is a creditor has been solicited and originated and is administered and, if serviced by Seller Bank, serviced, and the relevant files are being maintained, in accordance with the relevant loan documents, Seller Bank’s or, if applicable, a Subsidiary of Seller Bank’s, underwriting standards and with all requirements of applicable Laws (including those of the Small Business Administration) and applicable requirements of any government-sponsored enterprise program; and (ii) each of Seller Bank and its Subsidiaries has properly fulfilled its contractual responsibilities and duties in any Extension of Credit in which it acts as the lead lender or servicer and has complied with its duties as required under applicable Law.
(d) Except as would not reasonably be expected to be material to Seller Bank and its Subsidiaries, taken as a whole, since January 1, 2020 through the date hereof, there has been (i) no written demand made to Seller Bank or any of its Subsidiaries for the repurchase of any Extensions of Credit due to the alleged breach of any representation, warranty or covenant with respect to such Extensions of Credit or due to alleged fraud relating thereto, or (ii) to the Knowledge of Seller Bank and other than on account of an obligor’s insolvency or claimed insolvency, no claim in an amount in excess of $750,000 by an obligor of any Extension ofof Credit asserting that the obligor is entitled to damages associated with the conduct of Seller Bank or any Subsidiary of Seller Bank in connection with such Extension of Credit.
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