Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent: (a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent: (i) this Agreement duly executed by the parties; (ii) the Fee Letter, duly executed by the Seller; (iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado; (iv) the Custody Agreement duly executed by the Agent, the Seller and the Custodian; (v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent; (vi) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller; (vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller; (viii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller; (ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion; (x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion; (xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary; (xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee; (xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it; (xiv) payment to the Agent or the Custodian, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and (xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account.
Appears in 2 contracts
Samples: Master Repurchase Agreement (M.D.C. Holdings, Inc.), Master Repurchase Agreement (MDC Holdings Inc)
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) Buyer to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) the Agent Buyer shall have received (or be satisfied that it will receive by such deadline as the Agent Buyer shall specify) the following, all of which must be satisfactory in form and content to the AgentBuyer:
(i) this Agreement duly executed by the parties;
(ii) UCC financing statements for the Fee LetterPurchased Loans covered and security interests granted by this Agreement, each duly executed authorized by the Seller;
(iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of ColoradoOhio and such tax lien, judgment, litigation and bankruptcy searches in such jurisdictions as the Buyer may request, in each case satisfactory to the Buyer;
(iv) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp.MERSCORP, Inc. and the AgentBuyer;
(viv) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viivi) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viiivii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ixviii) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent Buyer in its sole discretion;
(xix) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent Buyer in its sole discretion;
(xix) evidence reasonably satisfactory to the Agent Buyer (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ Buyer’s interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York Minnesota or other applicable law, that such instruments as are necessary to give the Agent Buyer “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xiixi) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such with insurance coverage as is customary for members of providers reasonably acceptable to the Seller’s industryBuyer, together with endorsements to such policies in each case naming the Agent Buyer as lender loss payeean additional insured and providing for coverage in the amounts specified in Section 16.11;
(xiiixii) a favorable written opinion opinions of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers Buyer and in form and substance reasonably satisfactory to the Agent Buyer and its legal counsel (a form containing opinions required to be included therein are is set forth in Exhibit B), specifically stating that the Agent Buyer and any person or entity that purchases the Buyers may Purchased Loans from the Buyer can rely on it; provided, that Seller’s outside counsel may deliver its opinion at any time prior to January 15, 2010;
(xivxiii) payment to the Agent or Buyer of the Custodian, as applicable, of Facility Fee and all other fees and expenses (including the disbursements and reasonable fees of the AgentBuyer’s attorneys) of the Agent and the Buyers Buyer payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and;
(xvxiv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent Buyer establishing its control of the Income Account, Account and Escrow Account; and
(xv) evidence satisfactory to the Buyer that the Seller has entered into an agreement with Citibank, Operating AccountN.A., Repurchase Settlement Account or another financial institution acceptable to the Buyer in its sole discretion, providing mortgage warehouse financing in a committed amount of no less than Fifty Million Dollars ($50,000,000).
(b) All directors and officers of the Seller and all Affiliates of the Seller, to whom or which the Seller is indebted as of the date of this Agreement either for borrowed money or for any other obligation, excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and causing to be delivered to the Buyer a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and the Funding Accountcorporate secretary of the Seller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(b) to be true, complete and in full force and effect as of the date of the initial purchase.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Sirva Inc), Master Repurchase Agreement (Sirva Inc)
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
: (a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
: (i) this Agreement duly executed by the parties;
; (ii) a UCC financing statement with respect to the Fee Letter, duly executed by the Seller;
Collateral; (iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado;
Delaware; (iv) (A) the Custody Agreement duly executed by the Agent, completed Beneficial Ownership Certification from the Seller and (B) all other documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA Patriot Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for the Custodian;
Seller and any Person who provides guaranty or collateral support for all or any of the Obligations; (v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate member resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
; (viivi) an incumbency certificate showing the names and titles and bearing the signatures of the officers Responsible Officer(s) of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
; (viiivii) a copy of the bylaws Operating Agreement of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
; (ixviii) a copy of the Articles of Incorporation Organization of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv) payment to the Agent or the Custodian, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and
(xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account.
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
: (a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be reasonably satisfactory in form and content to the Agent:
: (i) this Agreement duly executed by Agreement, the parties;
(ii) Side Letter, the Fee Letter, and the Electronic Tracking Agreement, in each case, duly executed by the Seller;
parties thereto; (ii) a UCC financing statement naming the Seller as debtor and the Agent, on behalf of the Buyers, as secured party and claiming as collateral the Collateral; (iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado;
Ohio; (iv) (A) the Custody Agreement duly executed by the Agent, completed Beneficial Ownership Certification from the Seller and (B) all other documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA Patriot Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for the Custodian;
Seller and any Person who provides guaranty or collateral support for all or any of the Obligations; (v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate member resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Transaction Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
; (viivi) an incumbency certificate showing the names and titles and bearing the signatures of the officers Responsible Officer(s) of the Seller authorized to execute the Repurchase Transaction Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
; (viiivii) a copy of the bylaws Operating Agreement of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
; (ixviii) a copy of the Articles of Incorporation Organization of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv) payment to the Agent or the Custodian, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and
(xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account.
Appears in 1 contract
Initial Purchase. The obligations effectiveness of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are is subject to the Seller’s fulfillment of the following conditions precedent:
(a) on the Closing Date, the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
(i1) this Agreement duly executed by the parties;
(ii) the Fee Letter, duly executed by the Seller;
(iii2) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State Commonwealth of ColoradoVirginia and such other searches or evidence as the Agent may require to confirm the Agent’s first-priority Lien on the Purchase Loans;
(iv3) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi4) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement Closing Date by the Secretary or an Assistant Secretary of the Seller;
(vii5) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement Closing Date by the Secretary or an Assistant Secretary of the Seller;
(viii6) a copy of the bylaws of the Seller, certified as of the date of this Agreement Closing Date by the Secretary or an Assistant Secretary of the Seller;
(ix7) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) 8) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv9) payment to the Agent or the Custodian, as applicable, of the Facility Fee, the Agent’s Fee, if any, the Custodian’s Fee and all other fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date Closing Date;
(10) a copy of the Parent Subordinated Note, certified as true and complete by the Secretary or Assistant Secretary of the Seller’s execution and delivery of this Agreement; and
(xv11) a certificate of the Secretary or Assistant Secretary of Seller of Seller certifying that no amendments have been made to the extent not already obtainedTax Allocation Agreement since August 5, control agreements 2008, or if any such amendments have been made, certifying as to true and complete copies thereof.
(b) The Seller shall have paid all accrued and unpaid fees, Repurchase Price and Price Differential due to the Departing Buyers as of the Effective Date.
(c) The Electronic Tracking Agreement executed as of August 5, 2008, shall remain in form full force and substance reasonably satisfactory effect.
(d) The Seller shall have delivered to the Agent establishing its control all evidence of errors and omissions insurance and fidelity bond coverage required or requested under the Existing MRA.
(e) All directors and officers of the Income AccountSeller and all Affiliates of the Seller (except, Escrow Accountwith respect to the Parent Subordinated Note, Operating Accountthe Parent), Repurchase Settlement Account to whom or which the Seller is indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and causing to be delivered to the Agent a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and the Funding Accountcorporate secretary of the Seller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(b) to be true, complete and in full force and effect as of the date of the initial purchase.
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
(i) this Agreement duly executed by the parties;
(ii) a UCC financing statement with respect to the Fee Letter, duly executed by the SellerCollateral;
(iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of ColoradoDelaware;
(iv) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v) the MBS Custodial Agreement duly executed by the Agent, the Seller and the Approved MBS Custodian;
(vi) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vivii) a copy of the corporate member resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
(viiviii) an incumbency certificate showing the names and titles and bearing the signatures of the officers Responsible Officer(s) of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
(viiiix) a copy of the bylaws Operating Agreement of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ixx) a copy of the Articles of Incorporation Organization of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(xxi) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xixii) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York Michigan or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xiixiii) within ten (10) days after the Effective Date, copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;; and
(xiv) payment to the Agent or the Custodian, as applicable, of the Facility Fee, the Agent’s Fee, the Custodian’s Fee and all other fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and.
(xvb) Except with respect to (i) any mortgage warehouse loans from or repurchase transactions with Parent permitted pursuant to Section 17.2(c) and (ii) obligations to remit loan proceeds to Parent or its Affiliates arising out of a sale of homes by Parent or such Affiliate financed by the extent not already obtainedSeller, control agreements all members and managers of the Seller and all Affiliates of the Seller, to whom or which the Seller is indebted as of the date of this Agreement in form excess of One Million Dollars ($1,000,000), either for borrowed money or for any other obligation, excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and substance reasonably satisfactory causing to be delivered to the Agent establishing its control a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and a Responsible Officer of the Income AccountSeller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(b) to be true, Escrow Account, Operating Account, Repurchase Settlement Account complete and in full force and effect as of the Funding Accountdate of the initial purchase.
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
: (a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
: (i) this Agreement duly executed by the parties;
; (ii) a UCC financing statement with respect to the Fee Letter, duly executed by the Seller;
Collateral; (iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado;
Delaware; (iv) (A) the Custody Agreement duly executed by the Agent, completed Beneficial Ownership Certification from the Seller and (B) all other documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA Patriot Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for the Custodian;
Seller and any Person who provides guaranty or collateral support for all or any of the Obligations; (v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate member resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
; (viivi) an incumbency certificate showing the names and titles and bearing the signatures of the officers Responsible Officer(s) of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
; (viiivii) a copy of the bylaws Operating Agreement of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
; (ixviii) a copy of the Articles of Incorporation Organization of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv) payment to the Agent or the Custodian, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and
(xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account.59 Bodman_16842095_7
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Administrative Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) the Administrative Agent shall have received (or be satisfied that it will receive by such deadline as the Administrative Agent shall specify) the following, all of which must be satisfactory in form and content to the Administrative Agent:
(i1) this Agreement duly executed by the parties;
(ii2) an amendment to the Fee Letter, Custody Agreement duly executed by the parties thereto;
(3) a fee letter in form and substance satisfactory to U.S. Bank duly executed by the Seller;
(iii4) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of ColoradoTexas;
(5) copies of the Seller’s (i) limited partnership agreement, (ii) certificate of limited partnership issued by the state of Texas, (iii) articles of incorporation certified by the Secretary of State of the State of the Seller’s General Partner and (iv) bylaws or regulations and all amendments certified by its corporate secretary or assistant secretary, as well as any other information required by Section 326 of the Custody Agreement duly executed by USA Patriot Act or necessary for the Agent, Administrative Agent and the Buyers to verify the identity of the Seller and as required by Section 326 of the CustodianUSA Patriot Act in accordance with the requirements summarized in the notice given in Section 35;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi6) evidence reasonably satisfactory to the Administrative Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable lawLaw, that such instruments as are necessary to give the Administrative Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii7) a certificate of existence or authority and good standing for the Seller issued by the Secretary of State of Texas;
(8) original resolutions of the Seller’s general partner’s board of directors, certified as of the initial Purchase Date by the Seller’s general partner’s corporate secretary or assistant secretary or other authorized officer, authorizing the execution, delivery and performance by the Seller of this Agreement, the Custody Agreement and all other Repurchase Documents to be delivered by the Seller pursuant to this Agreement;
(9) a certificate of the Seller’s general partner’s corporate secretary or assistant secretary or other authorized officer as to (i) the incumbency of the officers of the Seller executing this Agreement, the Custody Agreement, each applicable Request/Confirmation and all other Repurchase Documents executed or to be executed by or on behalf of the Seller and (ii) the authenticity of their signatures, and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it (the Administrative Agent, the Buyers and the Custodian shall be entitled to rely on that certificate until the Seller has furnished a new certificate to the Administrative Agent);
(10) an Officer’s Certificate for the Seller dated the initial Purchase Date and certifying truthfully that, (i) after giving effect to the Transaction to occur on that Purchase Date, no Default or Event of Default will exist, (ii) all of the representations and warranties made by the Seller in the Repurchase Documents are true and correct as of the Effective Date and (iii) there has been no material adverse change since the Statement Date in any of the Central Elements in respect of the Seller or any of its Subsidiaries;
(11) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;; and
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv12) payment to the Administrative Agent or the Custodian, as applicable, of the Facility Fee, the Administrative Agent’s Fee, the Custodian’s Fee and all other fees and expenses (including the disbursements and reasonable fees of the Administrative Agent’s attorneys) of the Administrative Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and.
(xvb) All directors and officers of the Seller’s general partner, all partners of the Seller and all Affiliates of the Seller or any of its Subsidiaries, to whom or which the Seller shall be indebted either for borrowed money or for any other obligation of $50,000 or more as of the date of this Agreement, excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and causing to be delivered to the Administrative Agent a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and the corporate secretary of the Seller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(b) to the extent not already obtainedbe true, control agreements complete and in form full force and substance reasonably satisfactory to the Agent establishing its control effect as of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and date of the Funding Accountinitial purchase.
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) From time to time from the Agent Effective Date through the Commitment Termination Date, the Purchaser may request in writing, including, without limitation, by email (each such request an “Initial Purchase Request”), that CCLF Sub acquire one or more loans and related commitments, if any, or otherwise become a lender under the applicable Credit Agreement pursuant to which such loans and commitments are made.
(b) Upon receipt by CCLF Sub of such Initial Purchase Request together with any diligence, underwriting, investment committee and other similar materials (including, without limitation, a completed Excel spreadsheet substantially in the form attached hereto as Exhibit B) prepared by the Purchaser and/or its affiliates (which may be in draft form and which the Purchaser shall have received (no obligation to update or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
(i) this Agreement duly executed by the parties;
(ii) the Fee Letter, duly executed by the Seller;
(iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado;
(iv) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate resolution (or equivalent supplement after delivery thereof) and made available to CCLF Sub at the time of such Initial Purchase Request (it being understood that such information may be redacted to take into account any confidential or proprietary information of Purchaser), Cliffwater, on behalf of CCLF Sub, shall have the Seller authorizing the executionright, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole and absolute discretion;
(x) a certificate , to approve or reject such Initial Purchase Request and to request additional information in connection therewith. Cliffwater, on behalf of good standing (or CCLF Sub, shall notify the equivalent thereof) for the Seller Purchaser in the jurisdiction writing, including without limitation, by email, of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York approval or other applicable law, that such instruments as are necessary to give the Agent “control” rejection of such investment property have been duly executed by Initial Purchase Request no later than the Seller fifth (5th) business day succeeding the date on which it receives the Initial Purchase Request. If Cliffwater approves such Initial Purchase Request, CCLF Sub shall purchase (each, an “Initial Purchase”) such loans (and the relevant securities intermediary;
assume any Available Unfunded Commitments associated with such loans) (xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing each such insurance coverage as is customary for members of the Seller’s industryloan, together with endorsements any loans funded by CCLF Sub after the Initial Purchase Date thereto pursuant to an Available Unfunded Commitment assumed in connection therewith, a “Purchased Loan”) specified in such policies naming Initial Purchase Request on the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are terms set forth in Exhibit B)the relevant Initial Purchase Request (the date on which CCLF Sub acquires such Purchased Loan, specifically stating that the Agent and the Buyers may rely on it;
(xiv) payment to the Agent assumes such Available Unfunded Commitments or the Custodianotherwise becomes a lender or holder, as applicable, of all fees such Purchased Loan or Available Unfunded Commitments, an “Initial Purchase Date”); provided, that immediately after giving effect to such Initial Purchase, (A) the Purchased L&C Amount shall not exceed the Commitment Amount; and expenses (including B) the disbursements and reasonable fees aggregate Available Unfunded Commitments (excluding any such Available Unfunded Commitments that consist of Asset-Based Finance) shall not exceed 20% of the Agent’s attorneys) cost basis of all Purchased Loans (the “Unfunded Commitment Limit”). To the extent that the Purchaser is subject to any binding commitment to fund or otherwise provide any anticipated Purchased Loan or Available Unfunded Commitment pursuant to a commitment letter or similar agreement and Cliffwater, on behalf of CCLF Sub, has approved an Initial Purchase Request with respect thereto, the Purchaser and CCLF Sub shall, at the request of the Agent Purchaser, enter into a back-to-back commitment letter in the form attached hereto as Exhibit C (or as otherwise agreed between the Purchaser and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for CCLF Sub) with respect to the date Initial Purchase of the Seller’s execution and delivery of this Agreement; and
(xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Accountsuch Purchased Loans or Available Unfunded Commitments.
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Administrative Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) the Administrative Agent shall have received (or be satisfied that it will receive by such deadline as the Administrative Agent shall specify) the following, all of which must be satisfactory in form and content to the Administrative Agent:
(i1) this Agreement duly executed by the parties;
(ii2) the Fee Letter, a fee letter in form and substance satisfactory to U.S. Bank duly executed by the Seller;
(iii3) the Custody Agreement duly executed by the parties thereto;
(4) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of ColoradoTexas;
(5) copies of the Seller’s (i) limited partnership agreement, (ii) certificate of limited partnership issued by the state of Texas, (iii) articles of incorporation certified by the Secretary of State of the State of the Seller’s General Partner and (iv) bylaws or regulations and all amendments certified by its corporate secretary or assistant secretary, as well as any other information required by Section 326 of the Custody Agreement duly executed by USA Patriot Act or necessary for the Agent, Administrative Agent and the Buyers to verify the identity of the Seller and as required by Section 326 of the CustodianUSA Patriot Act in accordance with the requirements summarized in the notice given in Section 35;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi6) evidence reasonably satisfactory to the Administrative Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable lawLaw, that such instruments as are necessary to give the Administrative Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii7) a certificate of existence or authority and good standing for the Seller issued by the Secretary of State of Texas;
(8) original resolutions of the Seller’s general partner’s board of directors, certified as of the initial Purchase Date by the Seller’s general partner’s corporate secretary or assistant secretary or other authorized officer, authorizing the execution, delivery and performance by the Seller of this Agreement, the Custody Agreement and all other Repurchase Documents to be delivered by the Seller pursuant to this Agreement;
(9) a certificate of the Seller’s general partner’s corporate secretary or assistant secretary or other authorized officer as to (i) the incumbency of the officers of the Seller executing this Agreement, the Custody Agreement, each applicable Request/Confirmation and all other Repurchase Documents executed or to be executed by or on behalf of the Seller and (ii) the authenticity of their signatures, and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it, (the Administrative Agent, the Buyers and the Custodian shall be entitled to rely on that certificate until the Seller has furnished a new certificate to the Administrative Agent);
(10) an Officer’s Certificate for the Seller dated the initial Purchase Date and certifying truthfully that, (i) after giving effect to the Transaction to occur on that Purchase Date, no Default or Event of Default will exist, (ii) all of the representations and warranties made by the Seller in the Repurchase Documents are true and correct as of the Effective Date and (iii) there has been no material adverse change since the Statement Date in any of the Central Elements in respect of the Seller or any of its Subsidiaries;
(11) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;; and
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv12) payment to the Administrative Agent or the Custodian, as applicable, of the Facility Fee, the Administrative Agent’s Fee, the Custodian’s Fee and all other fees and expenses (including the disbursements and reasonable fees of the Administrative Agent’s attorneys) of the Administrative Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and.
(xvb) All directors and officers of the Seller’s general partner, all partners of the Seller and all Affiliates of the Seller or any of its Subsidiaries, to whom or which the Seller shall be indebted either for borrowed money or for any other obligation of $50,000 or more as of the date of this Agreement, excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and causing to be delivered to the Administrative Agent a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and the corporate secretary of the Seller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(b) to the extent not already obtainedbe true, control agreements complete and in form full force and substance reasonably satisfactory to the Agent establishing its control effect as of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and date of the Funding Accountinitial purchase.
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
(i1) this Agreement duly executed by the parties;
(ii2) UCC financing statements for the Fee LetterPurchased Loans covered by this Agreement, each duly executed authorized by the Seller;
(iii3) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State Commonwealth of ColoradoVirginia;
(iv4) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v5) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi6) the NVR Funding III Subordination Agreement, duly executed by the Seller, NVR Funding III, Inc., the Agent and the Buyers, together with a copy of the NVR Funding III Note, certified as true and complete by the Secretary or Assistant Secretary of the Seller;
(7) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(vii) 8) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viii9) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix10) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x11) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi12) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable lawLaw, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii13) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii14) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and Agent, the Buyers may and any person or entity that purchases the Eligible Loans from the Buyers can rely on it;; and
(xiv15) payment to the Agent or the Custodian, as applicable, of the Facility Fee, the Agent’s Fee, the Custodian’s Fee and all other fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and;
(xv16) to the extent not already obtained, a control agreements agreement in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account;
(17) a copy of the Parent Subordinated Note, certified as true and complete by the Secretary or Assistant Secretary of the Seller; and
(18) a copy of the Tax Allocation Agreement, with all amendments thereto, certified as true and complete by the Secretary or Assistant Secretary of Seller.
(b) All directors and officers of the Seller and all Affiliates of the Seller (except, with respect to the Parent Subordinated Note, the Parent), to whom or which the Seller shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and causing to be delivered to the Agent a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and the corporate secretary of the Seller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(b) to be true, complete and in full force and effect as of the date of the initial purchase.
Appears in 1 contract
Initial Purchase. (a) The obligations of the Buyers (Company agrees to sell and the Agent Investor agrees to purchase that number of shares of Common Stock (the "Initial Shares") determined by dividing the $500,000 by the Purchase Price for the Initial Shares on the Buyers’ behalfSubscription Date.
(b) to make Upon the initial purchase under this Agreement are subject to the Seller’s fulfillment completion of the following conditions precedent:
(a) the Agent Initial Shares shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content released to the AgentInvestor and the Initial Shares Investment Amount (after all fees have been paid as set forth in the Escrow Agreement) shall be released to the Company, pursuant to the terms of the Escrow Agreement:
(i) acceptance and execution by the Company and by the Investor, of this Agreement duly executed by the partiesand Exhibits hereto;
(ii) delivery into escrow by Investor of good cleared funds in the Fee LetterInitial Shares Investment Amount, duly executed by (as more fully set forth in the SellerEscrow Agreement attached hereto as Exhibit C);
(iii) a current UCC search report of a UCC filings search in the office all representations and warranties of the Secretary of State Investor and of the State Company contained herein shall remain true and correct as of Coloradothe Subscription Date and the Company shall have delivered into escrow an Officer's Certificate signed by its Chief Executive Officer certifying that all of the Company's representations and warranties herein remain true and correct as of the Closing Date and that the Company has performed all covenants and satisfied all conditions to be performed or satisfied by the Company prior to such Closing;
(iv) the Custody Agreement duly executed Company shall have obtained all permits and qualifications required by any state for the Agent, offer and sale of the Seller Common Stock and the CustodianWarrant, or shall have the availability of exemptions therefrom;
(v) the Electronic Tracking Agreement sale and issuance of the Common Stock, Warrant, and the proposed issuance of the Common Stock underlying the Warrant shall be legally permitted by all laws and regulations to which the Investor and the Company are subject; and all duly executed by Exhibits hereto for the Seller, MERS, MERSCorp., Inc. and sale of the AgentSecurities;
(vi) a copy delivery of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified original Securities as of the date of this Agreement by the Secretary or an Assistant Secretary of the Sellerdescribed herein;
(vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement receipt by the Secretary or Investor of an Assistant Secretary opinion of Broad and Cassel, counsel to the Seller;Company, in the form of Xxhibit D hereto; and
(viii) a copy delivery to the Company's transfer agent of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable Irrevocable Instructions to the Transfer Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials form attached hereto as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv) payment to the Agent or the Custodian, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and
(xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account.F.
Appears in 1 contract
Samples: Private Equity Line of Credit Agreement (Big Entertainment Inc)
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
(i) this Agreement duly executed by the parties;
(ii) UCC financing statements for the Fee LetterPurchased Loans covered by this Agreement, each duly executed authorized by the Seller;
(iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado;
(iv) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable lawLaw, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;; and
(xiv) payment to the Agent or the Custodian, as applicable, of the Facility Fee, the Agent’s Fee, and all other fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and;
(xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account.
(xvi) Evidence satisfactory to the Agent that, after giving effect to the Transaction contemplated by Section 3.7, the Seller’s obligations under the Warehousing Credit Agreement for principal will have been paid in full.
Appears in 1 contract
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
(a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
(i) this Agreement duly executed by the parties;
(ii) a UCC financing statement with respect to the Fee Letter, duly executed by the SellerCollateral;
(iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of ColoradoDelaware;
(iv) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate member resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
(vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers Responsible Officer(s) of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
(viii) a copy of the bylaws Operating Agreement of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation Organization of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York Michigan or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B)counsel, specifically stating that the Agent and Agent, the Buyers may and any person or entity that purchases the Purchased Loans from the Buyers can rely on it;
(xiv) payment to the Agent or the Custodian, as applicable, of the Facility Fee, the Agent’s Fee, the Custodian’s Fee and all other fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and
(xv) to the extent not already obtained, control agreements in form and substance reasonably evidence satisfactory to the Agent establishing that, after giving effect to the Transaction contemplated by Section 3.6, the Seller’s obligations under the Warehousing Credit Agreement for principal will have been paid in full.
(b) Except with respect to (i) any mortgage warehouse loans from or repurchase transactions with Parent permitted pursuant to Section 17.2(c) and (ii) obligations to remit loan proceeds to Parent or its control Affiliates arising out of a sale of homes by Parent or such Affiliate financed by the Seller, all members and managers of the Income AccountSeller and all Affiliates of the Seller, Escrow Accountto whom or which the Seller is indebted as of the date of this Agreement in excess of One Million Dollars ($1,000,000), Operating Accounteither for borrowed money or for any other obligation, Repurchase Settlement Account excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and causing to be delivered to the Funding AccountAgent a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and a Responsible Officer of the Seller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(b) to be true, complete and in full force and effect as of the date of the initial purchase.
Appears in 1 contract
Initial Purchase. The obligations obligation of the Buyers (and the Agent on the Buyers’ behalf) Purchaser to make complete the initial purchase Purchase under this Agreement are is subject to the Seller’s fulfillment satisfaction of the following conditions precedentprecedent that on or before the initial Closing Date the Purchaser shall have received each of the following, in form and substance satisfactory to the Purchaser or its counsel, each of which conditions precedent is for the sole benefit of the Purchaser and may be waived by it at any time:
(a1) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all executed copies of which must be satisfactory in form and content to the Agent:
(i) this Agreement duly executed by the partiesAgreement;
(ii2) executed copies of the Fee Letter, duly executed by Terms Schedule in respect of such Purchase and the Sellerother Related Documents;
(iii3) a current UCC search report certificates of a UCC filings search status, good standing or compliance, as appropriate, with respect to the Seller and Chrysler Financial issued by their respective jurisdictions of incorporation and by each province in which the office Seller carries on business and in which the Secured Loans forming part of the Secretary of State of the State of ColoradoPurchased Assets were originated;
(iv4) the Custody Agreement duly executed by the Agent, an Officer's Certificate from each of the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. Chrysler Financial relating to their respective constating documents and the Agent;
(vi) a copy certified copies of the all necessary corporate resolution (or equivalent thereof) authorizations of the Seller authorizing and Chrysler Financial to authorize the execution, delivery and performance of this Agreement and the Repurchase DocumentsTerms Schedule relating to such initial Purchase, certified as of the date of this Agreement by the Secretary or an Assistant Secretary Related Documents to which it is a party and of the Sellertransactions contemplated hereby and thereby;
(vii5) an incumbency certificate showing Officer's Certificate of each of the Seller and Chrysler Financial as to the names and titles and bearing the true signatures of the officers authorized to sign this Agreement and the Related Documents on its behalf, on which Officer's Certificates the Purchaser shall be entitled to conclusively rely in respect of all Purchases until such time as the Purchaser receives from the Seller or Chrysler Financial, as the case may be, a replacement Officer's Certificate meeting the requirements of this Section 4.1(a)(5);
(6) an Officer's Certificate of the Seller authorized to execute the Repurchase Documentseffect that
(A) the representations and warranties set out in Section 5.1 are true and correct, certified as of and
(B) no event has occurred and is continuing, or would result from the date of this Agreement by the Secretary or an Assistant Secretary of the SellerPurchase, which constitutes a Significant Event;
(viii7) an Officer's Certificate of Chrysler Financial to the effect that
(A) the representations and warranties set out in Section 5.2 are true and correct, and
(B) no event has occurred and is continuing, or would result from the Purchase, which constitutes a Significant Event;
(8) an Officer's Certificate of the Seller addressed to the Purchaser and to counsel to the Purchaser as to certain factual matters in support of the opinion referred to in Section 4.1(a)(16) and as to the forms of retail instalment sale contract evidencing Secured Loans now in use by Dealers in Canada;
(9) executed copies of the relevant Assignment;
(10) copies of properly completed and duly registered financing statements or financing change statements, or verification statements evidencing such registration, assignments or other public filings with respect to the Purchaser's ownership interest in the Purchased Assets, with registration particulars stamped thereon, dated before the Closing Date, naming the Seller, as seller, assignor, "debtor" (as such term is used under the applicable Personal Property Security Act to describe the assignor under an absolute assignment of an account or book debt) or transferor, as appropriate, and the Purchaser, as purchaser, assignee, "secured party" (as such term is used under the applicable Personal Property Security Act to describe the assignee under an absolute assignment of an account or book debt) or transferee, as appropriate, and any other similar instruments or documents as may be necessary or advisable, in the reasonable opinion of the Purchaser or its counsel, to perfect the sale to the Purchaser of the Purchaser's ownership interest in the Purchased Assets and to record or protect the Purchaser's ownership interest in the Purchased Assets;
(11) an Advance Ruling Certificate under the Competition Act (Canada) in respect of such Purchase contemplated herein, if required;
(12) an executed copy of the bylaws of applicable Cap Agreement, including the Sellerconfirmation relating thereto, certified as of in form and substance satisfactory to the date of this Agreement by Purchaser and its counsel, relating to the Secretary or an Assistant Secretary of the SellerPurchase;
(ix13) a copy an Officer's Certificate of the Articles of Incorporation of the Seller with all amendments theretoFinancial Services Agent confirming that one or more Liquidity Agreements and one or more Credit Support Agreements, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable each on terms and conditions and in form and substance satisfactory to the Agent Purchaser in its sole discretion, are in full force and effect;
(x14) a certificate an Officer's Certificate of good standing (the Financial Services Agent confirming that no event has occurred and is continuing which, under the terms of the Financial Services Agreement or the equivalent thereof) for Trust Indenture, would prevent the Seller in Purchaser from issuing additional Notes and that all conditions precedent under the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable Trust Indenture to the Agent issuance of Notes in its sole discretionrespect of the Purchase have been satisfied;
(xi15) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices favourable opinions of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by counsel for the Seller and the relevant securities intermediaryGeneral Counsel for Chrysler Financial in substantially the form of Exhibits 4.1(a)(15)-A and 4.1(a)(15)-B respectively;
(xii16) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written favourable opinion of counsel to the Seller dated on or before Purchaser as to whether the provisions of this Agreement and each Assignment contemplated thereby are sufficient to effect and, in respect of the initial Purchase DateAssignment, addressed do effect, as between the Seller and the Purchaser, a valid sale to the Agent Purchaser of all of the Seller's right, title and interest in, to and under the Buyers Secured Loans and Secured Loan Rights specified in form such Assignment and substance as to such other matters as the Purchaser and its counsel may reasonably satisfactory consider necessary or appropriate;
(17) such other approvals, opinions or documents as the Purchaser may reasonably request, including, without limitation, opinions of local counsel as to the Agent registration or filing of the applicable Assignment or notice thereof and its legal counsel such other matters as the Purchaser may reasonably require;
(18) a form containing opinions required to be included therein are financial advisory fee in the amount set forth in Exhibit B)the Terms Schedule, specifically stating that the Agent inclusive of applicable goods and the Buyers may rely on it;
(xiv) payment to the Agent or the Custodianservices taxes, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of Financial Services Agent in connection with the Seller’s execution and delivery of this AgreementPurchase; and
(xv19) a structuring fee in the amount set forth in the Terms Schedule payable by the Seller to the extent not already obtained, control agreements Financial Services Agent in form and substance reasonably satisfactory to connection with the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding AccountPurchase.
Appears in 1 contract
Samples: Master Receivables Purchase Agreement (Chrysler Financial Corp)
Initial Purchase. The obligations of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment of the following conditions precedent:
: (a) the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
: (i) this Agreement duly executed by Agreement, the parties;
(ii) Side Letter, the Fee Letter, the Electronic Tracking Agreement, the Custody Agreement, in each case, duly executed by the Seller;
parties thereto; (ii) a UCC financing statement naming the Seller as debtor and the Agent, on behalf of the Buyers, as secured party and claiming as collateral the Collateral; (iii) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado;
Delaware; (iv) (A) the Custody Agreement duly executed by the Agent, completed Beneficial Ownership Certification from the Seller and (B) all other documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA Patriot Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for the Custodian;
Seller and any Person who provides guaranty or collateral support for all or any of the Obligations; (v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi) a copy of the corporate member resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Transaction Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
; (viivi) an incumbency certificate showing the names and titles and bearing the signatures of the officers Responsible Officer(s) of the Seller authorized to execute the Repurchase Transaction Documents, certified as of the date of this Agreement by the Secretary or an Assistant Secretary a Responsible Officer of the Seller;
(viii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv) payment to the Agent or the Custodian, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date of the Seller’s execution and delivery of this Agreement; and
(xv) to the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Account.
Appears in 1 contract
Initial Purchase. The obligations obligation of the Buyers (and the Agent on the Buyers’ behalf) Buyer to make the initial purchase purchases under this Agreement are is subject to the Seller’s fulfillment of the following conditions precedent:
(ai) the Agent Buyer shall have received (or be satisfied that it will receive by such deadline as the Agent Buyer shall specify) the following, all of which must be are satisfactory in form and content to the AgentBuyer:
(ia) this Agreement duly executed by the parties;
(ii) the Fee Letter, duly executed by the Seller;
(iiib) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State of Colorado;
(iv) the Custody Agreement duly executed by the Agentif applicable, the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. the Electronic Agent and the AgentBuyer;
(vic) if applicable, the Master Custodial Agreement duly executed by the Seller and all other parties thereto, together with evidence satisfactory to the Buyer that the Custodial Account has been opened;
(d) the UCC financing statements or UCC-3 Amendment, as applicable, for the Purchased Loans duly authorized by the Seller;
(e) a copy current UCC, judgment and tax lien search report from the applicable state and county offices where the Seller is located;
(f) copies of the corporate resolution Seller’s (i) formation documents certified by the Secretary of State of the state of its formation and (ii) operating documents and all amendments certified by its secretary or equivalent thereof) assistant secretary, manager or member, as the case may be, as well as any other information required by Section 326 of the USA Patriot Act or necessary for the Buyer to verify the identity of the Seller as required by Section 326 of the USA Patriot Act in accordance with the requirements summarized in the notice given in Section 37;
(g) a certificate of existence and good standing for the Seller issued by the Secretary of State of the state in which such Person is formed and, if required by the Buyer, a certificate of existence or foreign authority and good standing for the Seller issued by the Secretary of State of each jurisdiction in which the Seller conducts business and is required to qualify to do business;
(h) original resolutions of the Seller’s board of directors, governing body, manager or member, as the case may be, certified as of the initial Purchase Date hereunder by the Seller’s secretary or assistant secretary, manager or member, as applicable, authorizing the execution, delivery and performance by the Seller of this Agreement and all other Facility Papers to be delivered by the Seller pursuant to this Agreement;
(i) a certificate of the Seller’s secretary or assistant secretary, manager or member, as the case may be, as to (i) the incumbency of the Authorized Seller Representatives of the Seller executing this Agreement and all other Facility Papers executed or to be executed by or on behalf of the Seller and (ii) the authenticity of their signatures — and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it — (the Buyer shall be entitled to rely on that certificate until the Seller has furnished a new certificate to the Buyer), and certifying that attached to such certificate are true and correct copies of all amendments to the Seller’s formation and operating documents since its inception;
(j) an Officer’s Certificate for the Seller dated the date of this Agreement and certifying truthfully that, (i) the Seller is in compliance with all the terms and provisions set forth in the Agreement on its part to be observed and performed and no Potential Default or Event of Default has occurred, is continuing and, after giving effect to the transactions contemplated under the Repurchase DocumentsFacility pursuant to the Agreement on the date hereof, certified shall occur as a result of entering into such transactions, (ii) all of the representations and warranties made by the Seller in the Facility Papers are true and correct as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(vii) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase DocumentsAgreement, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(viii) a copy of the bylaws of the Seller, certified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Seller;
(ix) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under has been no Material Adverse Effect since the UCC date of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediaryfinancial statements referred in Section 16.1(iv)(a);
(xiik) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is acceptable to the Buyer and otherwise customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiiil) a favorable written opinion of counsel to the Seller (and the Guarantor(s), if applicable) dated on or before as of the initial Purchase Datedate of this Agreement, addressed to the Agent and the Buyers Buyer and in form and substance reasonably satisfactory to the Agent Buyer and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B)counsel, specifically stating that the Agent Buyer, its successors and the Buyers may assigns can rely on it;
(xivm) payment evidence reasonably satisfactory to the Agent Buyer (i) as to the due filing and recording in all appropriate offices of all UCC financing statements or the CustodianUCC-3 Amendment, as applicable, (ii) if there are any Purchased Loans that require the Buyer’s interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC or any other applicable Law, that such instruments as are necessary to give the Buyer “control” of all fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable such investment property have been duly executed by the Seller pursuant to Section 9 accrued and billed for the relevant securities intermediary;
(n) evidence satisfactory to the Buyer that the Investor Funding Account, the Loan Funding Account, the Administrative Account, the Operating Account, the Custodial Account, and the Cash Collateral Account, as applicable, remain open or have been opened;
(o) the most currently available month-end financial statements for the Seller, all in reasonable detail and certified by Seller’s chief financial officer that, to the best of his or her knowledge, such financial statements were prepared in accordance with GAAP and present fairly in all material respects the Seller’s financial condition as of the date thereof and the results of its operations for the period covered, subject, however, to adjustments required by FAS-91 and normal year-end audit adjustments and the omission of notes to the financial statements;
(p) the Guaranty, if any, duly executed by the Guarantors;
(q) if required by the Buyer, satisfactory results from a Buyer-conducted internal client review of the Seller’s execution and delivery of this Agreement; and
(xvr) to such other documents or opinions as the extent not already obtained, control agreements in form and substance reasonably satisfactory to the Agent establishing Buyer or its control of the Income Account, Escrow Account, Operating Account, Repurchase Settlement Account and the Funding Accountcounsel may request.
Appears in 1 contract
Samples: Master Repurchase Agreement (Century Communities, Inc.)
Initial Purchase. The obligations effectiveness of the Buyers (and the Agent on the Buyers’ behalf) to make the initial purchase under this Agreement are is subject to the Seller’s fulfillment of the following conditions precedent:
(a) on the Effective Date, the Agent shall have received (or be satisfied that it will receive by such deadline as the Agent shall specify) the following, all of which must be satisfactory in form and content to the Agent:
(i1) this Agreement duly executed by the parties;
(ii) the Fee Letter, duly executed by the Seller;
(iii2) a current UCC search report of a UCC filings search in the office of the Secretary of State of the State Commonwealth of ColoradoVirginia and such other searches or evidence as the Agent may require to confirm the Agent’s first-priority Lien on the Purchase Loans;
(iv3) the Custody Agreement duly executed by the Agent, the Seller and the Custodian;
(v) the Electronic Tracking Agreement duly executed by the Seller, MERS, MERSCorp., Inc. and the Agent;
(vi4) a copy of the corporate resolution (or equivalent thereof) of the Seller authorizing the execution, delivery and performance of the Repurchase Documents, certified as of the date of this Agreement Effective Date by the Secretary or an Assistant Secretary of the Seller;
(vii5) an incumbency certificate showing the names and titles and bearing the signatures of the officers of the Seller authorized to execute the Repurchase Documents, certified as of the date of this Agreement Effective Date by the Secretary or an Assistant Secretary of the Seller;
(viii6) a copy of the bylaws of the Seller, certified as of the date of this Agreement Effective Date by the Secretary or an Assistant Secretary of the Seller;
(ix7) a copy of the Articles of Incorporation of the Seller with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date acceptable to the Agent in its sole discretion;
(x) 8) a certificate of good standing (or the equivalent thereof) for the Seller in the jurisdiction of its incorporation, certified by the appropriate governmental officials as of a date acceptable to the Agent in its sole discretion;
(xi) evidence reasonably satisfactory to the Agent (i) as to the due filing and recording in all appropriate offices of all financing statements, (ii) if there are any Purchased Loans that require the Buyers’ interest to be noted by book entry, that such book entry has been duly made and (iii) if there is any “investment property” under the UCC of the State of New York or other applicable law, that such instruments as are necessary to give the Agent “control” of such investment property have been duly executed by the Seller and the relevant securities intermediary;
(xii) copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Seller’s industry, together with endorsements to such policies naming the Agent as lender loss payee;
(xiii) a favorable written opinion of counsel to the Seller dated on or before the initial Purchase Date, addressed to the Agent and the Buyers and in form and substance reasonably satisfactory to the Agent and its legal counsel (a form containing opinions required to be included therein are set forth in Exhibit B), specifically stating that the Agent and the Buyers may rely on it;
(xiv9) payment to the Agent or the Custodian, as applicable, of the Facility Fee, the Agent’s Fee, if any, the Custodian’s Fee and all other fees and expenses (including the disbursements and reasonable fees of the Agent’s attorneys) of the Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and billed for to the date Effective Date;
(10) an Officer’s Certificate for the Seller dated the initial Purchase Date and certifying truthfully that, (i) after giving effect to the Transaction to occur on that Purchase Date, no Default or Event of Default will exist, (ii) all of the Seller’s execution representations and delivery warranties made by the Seller in the Repurchase Documents are true and correct as of this Agreementthe Effective Date and (iii) there has been no material adverse change since the Statement Date in any of the Central Elements in respect of the Seller or any of its Subsidiaries;
(11) the Fee Letter, duly executed by the parties;
(12) [Reserved]; and
(xv13) a certificate of the Secretary or Assistant Secretary of Seller of Seller certifying that no amendments have been made to the extent not already obtainedTax Allocation Agreement since August 5, control agreements 2008 and to the Parent Subordinated Note since July 25, 2011, or if any such amendments have been made, certifying as to true and complete copies thereof.
(b) The Electronic Tracking Agreement executed as of August 5, 2008, shall remain in form full force and substance reasonably satisfactory effect.
(c) The Seller shall have delivered to the Agent establishing its control all evidence of errors and omissions insurance and fidelity bond coverage required or requested under the Existing MRA.
(d) All directors and officers of the Income AccountSeller and all Affiliates of the Seller (except, Escrow Accountwith respect to the Parent Subordinated Note, Operating Accountthe Parent), Repurchase Settlement Account to whom or which the Seller is indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, excluding salary, bonus or other compensation obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing and causing to be delivered to the Agent a Subordination Agreement and taking all other steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and the Funding Accountcorporate secretary of the Seller shall have certified each such Subordination Agreement executed to satisfy the requirements of this Section 14.1(d) to be true, complete and in full force and effect as of the date of the initial purchase.
Appears in 1 contract
