Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced by notes, agreements or other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent secured, has been secured by valid Liens which have been perfected and (iii) to the Knowledge of the Company, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Company. (b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs. (c) None of the agreements pursuant to which the Company has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue any other form of recourse against the Company. (d) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date. (e) Section 3.25(e) of the Company Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date. (f) Section 3.25(f) of the Company Disclosure Schedule sets forth a list of all Loans as of the date of this Agreement by the Company to any directors, officers and principal shareholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (12 C.F.R. Part 215)) of the Company. There are no employee, officer, director or other Affiliate Loans on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, and all such Loans are and were originated in compliance with all applicable Laws. (g) The Company is not now nor has it ever been since January 1, 2012 subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency. (h) Since January 1, 2012, the Company has complied with, and all documentation in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approval. (i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws. (j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law. (k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesthe Company or any of its Subsidiaries were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, and, to the knowledge of the Company, the Loans are not subject to any defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such Loans and all forms of pledges, genuine mortgages and what they purport to beother collateral documents and security agreements are, in all material respects, enforceable and valid.
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor the Company’s practices of approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including, without limitation, the Truth In Lending Act, Regulations O and Z of the Federal Reserve Board, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in the Knowledge Company’s audited balance sheet at March 31, 2011 was, and the allowance for loan losses shown on the balance sheets in the Company’s Reports for periods ending after such date, in the opinion of management, was or will be adequate, as of the Company, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Companydates thereof.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(civ) None of the agreements pursuant to which the Company or any of its Subsidiaries has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue solely on account of a payment default by the obligor on any other form of recourse against the Companysuch Loan.
(dv) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the The Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule Letter sets forth a list of all Loans as of the date of this Agreement hereof by the Company or New England Bank to any directors, executive officers and principal shareholders stockholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) Board (12 C.F.R. Part 215)) of the Company. There Company or any of its Subsidiaries, (B) there are no Loans to any employee, officer, director or other Affiliate Loans affiliate thereof on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, O and (C) all such Loans are and were originated in compliance in all material respects with all applicable Lawslaws.
(gvi) The Company is not now nor has it ever been since January 1Company’s Disclosure Letter sets forth a listing, 2012 subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing as of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1March 31, 2012, of all Loans (A) that are contractually past due ninety (90) days or more in the Company has complied withpayment of principal and/or interest, (B) that are on non-accrual status, (C) that are classified as “Watch,” “Special Mention,” “Substandard,” “Doubtful,” “Loss” or words of similar import, (D) where the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the origination of the Loan due to concerns regarding the borrower’s ability to pay in accordance with the Loan’s original terms and all documentation (E) where a specific reserve allocation exists in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approvaltherewith.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesCMYF were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, in accordance in all material respects with sound banking practices and, to the Knowledge of CMYF, the Loans are not subject to any defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such Loans and all forms of pledges, genuine mortgages and what they purport to beother collateral documents and security agreements are, in all material respects, enforceable and valid, except as may be provided by bankruptcy, insolvency and similar laws and general principles of equity.
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor CMYF’s practices of approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including, without limitation, the Truth In Lending Act, Regulations O and Z of the Federal Reserve, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in CMYF’s audited statement of financial condition at December 31, 2017, and the Knowledge allowance for loan losses shown on the CMYF’s interim statement of financial condition as of June 30, 2018, in the opinion of management, were adequate, as of the Companydates thereof, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Companyunder GAAP.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(civ) None of the agreements pursuant to which the Company CMYF has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue solely on account of a payment default by the obligor on any other form of recourse against the Companysuch Loan.
(dv) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrowerCMYF’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule Letter sets forth a list of all Loans as of the date of this Agreement hereof by the Company CMYF to any directors, executive officers and principal shareholders stockholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (12 C.F.R. Part 215), as implemented by the FDIC) of the Company. There CMYF, (B) there are no Loans to any employee, officer, director or other Affiliate Loans thereof on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which that was or is not in compliance with Regulation O, O and (C) all such Loans are and were originated in compliance in all material respects with all applicable Lawslaws.
(gvi) The Company is not now nor has it ever been since January 1CMYF’s Disclosure Letter sets forth a listing, 2012 subject to any fineas of August 31, suspension2018, settlement by account, of: (A) each borrower, customer or other contract or other administrative agreement or sanction byparty that has notified CMYF during the past twelve (12) months of, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, the Company has complied with, and all documentation in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgagesasserted against CMYF, in each case applicable as of the time of such originationin writing, processing, underwriting any “lender liability” or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approval.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged insimilar claim, and, to the Knowledge of the CompanyCMYF, no third-each borrower, customer or other party vendors that has given CMYF any oral notification of, or orally asserted to or against CMYF, any such claim; and (including outside law firms and other third-party foreclosure services providersB) used by the Company has engaged in, directly or indirectly, all Loans (1) any foreclosures that are contractually past due ninety (90) days or more in violation the payment of any applicable Lawprincipal and/or interest, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to that are on non-accrual status, (3) that are classified as “robo-signingSpecial Mention,” “Substandard,” “Doubtful,” “Loss” or any words of similar import, (4) that are considered troubled debt restructurings or where the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the origination of the Loan due to concerns regarding the borrower’s ability to pay in accordance with the Loan’s original terms and (5) where a specific reserve allocation exists in connection therewith; and (C) all other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any assets classified by CMYF as real estate (other than singleacquired through foreclosure or in lieu of foreclosure, including in-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93substance foreclosures, and update FIL-98-2006) all other assets currently held that were acquired through foreclosure or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess lieu of the asset’s valueforeclosure.
Appears in 1 contract
Loan Matters. (a) There are no outstanding loans to any directors, executive officers and principal shareholders (as such terms are defined in the FRB’s Regulation O (12 C.F.R. Part 215)) of HBC or any of its Subsidiaries on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was below market at the time the loan was originated.
(b) Each outstanding loan held by HBC or any of its Subsidiaries (including loans held for resale to investors) was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant loan files are being maintained, in accordance with the relevant notes or other credit or security documents, HBC’s or its applicable Subsidiary’s written underwriting standards (and, in the case of loans held for resale to investors, the underwriting standards, if any, of the applicable investors) and with all applicable laws.
(c) None of the agreements pursuant to which HBC or any of its Subsidiaries has sold loans or pools of loans or participations in loans or pools of loans contains any obligation to repurchase such loans or interests therein solely on account of a payment default by the obligor on any such loan, other than customary early payment default provisions.
(d) Each outstanding loan agreement, note held by HBC or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding any of its Subsidiaries (i) is evidenced by notes, agreements or other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent secured, has been secured by valid Liens which have been perfected and (iii) to the Knowledge of the Company, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability ExceptionsBankruptcy and Equity Exception). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Company.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(c) None of the agreements pursuant to which the Company has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue any other form of recourse against the Company.
(d) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) With respect to the loans held by HBC or any of the Company Disclosure Schedule sets forth a list of (i) each Loan that its Subsidiaries, as of September 30, 2015 and as 2015, HBC has provided or made available to CenterState lists or summaries of the last Business Day following: (i) all loans (including loan participations) that have been accelerated during the past twelve (12) months; (ii) all loan commitments or lines of credit which have been terminated during the past twelve (12) months by reason of a default or adverse developments in the condition of the last calendar month prior borrower or other events or circumstances affecting the credit of the borrower; (iii) all loans, lines of credit and loan commitments as to which it has given written notice of its intent to terminate (e.g., by foreclosure, repossession, nonrenewal, or refinancing out of an existing loan) during the past twelve (12) months; (iv) with respect to any commercial loans (including any commercial real estate loan) with an outstanding balance in excess of $500,000, all notification letters and other written communications from it to any of its borrowers, customers or other parties during the past twelve (12) months wherein it has requested or demanded that actions be taken to correct existing defaults or facts or circumstances which may become defaults; (v) each borrower, customer or other party which has notified it during the past twelve (12) months of, or has asserted against it, in each case in writing, any “lender liability” or similar claim, and, to the Closing Date Knowledge of HBC, each borrower, customer or other party which has given any oral notification of, or orally asserted to or against it, any such claim; (vi) all loans, (A) was that are contractually past due 90 ninety (90) days or more in the payment of principal and/or or interest, (B) was that are on non-accrual status, (C) was that are classified as “substandardOther Loans Specially Mentioned,” “doubtfulSpecial Mention,” “lossSubstandard,” “classifiedDoubtful,” “criticizedLoss,” “credit risk assetsClassified,” “concerned loansCriticized,” “watch listWatch List,” “impaired” or “special mention” (or words of similar import) by , together with the Companyprincipal amount of and accrued and unpaid interest on each such loan and the identity of the obligor thereunder, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) where a reasonable doubt exists as to the timely future collectability of principal and/or or interest, whether or not interest is still accruing or the Loans loans are less than 90 ninety (90) days past due or due, (BE) where, during the past year, the interest rate terms have been reduced and/or or the maturity dates have been extended subsequent to the agreement under which the Loan loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iiiF) each asset of the Company that as of September 30where a specific reserve allocation exists in connection therewith, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans(G) a borrower, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule sets forth a list of all Loans as of the date of this Agreement by the Company to any directors, officers and principal shareholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (12 C.F.R. Part 215)) of the Company. There are no employee, officer, director customer or other Affiliate Loans on which party has notified it during the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, and all such Loans are and were originated in compliance with all applicable Laws.
past twelve (g12) The Company is not now nor has it ever been since January 1, 2012 subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction bymonths of, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, the Company has complied with, and all documentation in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgagesasserted against it, in each case applicable as of the time of such originationin writing, processing, underwriting any “lender liability” or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approval.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, similar claim and, to the Knowledge of the CompanyHBC, no third-each borrower, customer or other party vendors which has given any oral notification of, or orally asserted to or against it, any such claims; and (including outside law firms and other third-party vii) all assets classified by it as real estate acquired through foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation lieu of any applicable Lawforeclosure, including but not limited to the Servicemembers Civil Relief Actin-substance foreclosures, and all other assets currently held that were acquired through foreclosure or in breach lieu of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Lawforeclosure.
(kf) Since January 1The allowance for loan losses reflected in the HBC Financial Statements was (and will be for periods ended after December 31, 20122014) adequate, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess as of the asset’s valuedates thereof, under GAAP.
Appears in 1 contract
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesthe Company or any of its Subsidiaries were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, in accordance in all material respects with sound banking practices and, the Loans are not subject to any pending, or to the Knowledge of the Company, threatened defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are evidencing such Loans and all forms of pledges, mortgages and other collateral documents and security agreements are, in all material respects, enforceable and valid (except as may be limited by the Enforceability Exceptions), and in each case, true, genuine and what they purport to be, .
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor the Company’s practices of soliciting, originating, approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including, without limitation, the Truth In Lending Act, Regulations O and Z of the Federal Reserve, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in the Knowledge Company’s audited balance sheet at December 31, 2018 and unaudited balance sheet at June 30, 2019 were, and the allowance for loan losses shown on the Financial Statements for periods ending after such date, in the opinion of management, were, or will be, adequate, as of the Companydates thereof, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Companyunder GAAP.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(civ) None of the agreements pursuant to which the Company or any of its Subsidiaries has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue solely because of a payment default by the obligor on any other form of recourse against the Companysuch Loan.
(da) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Company’s Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule Letter sets forth a list of all Loans as of the date of this Agreement hereof by the Company or any of its Subsidiaries to any directors, officers and executive officers, principal shareholders or other insider (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (12 C.F.R. Part 215)) of the Company. There Company or any of its Subsidiaries, (B) there are no Loans to any employee, officer, director director, or other insider (as such terms are defined in Regulation O of the Federal Reserve (12 C.F.R. Part 215)) or Affiliate Loans thereof on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which that was or is not in compliance with Regulation O, O and (C) all such Loans are and were originated in compliance in all material respects with all applicable Lawslaws.
(gvi) The Company is not now nor has it ever been since January 1Except as such disclosure may be limited by any applicable law, 2012 subject to any finerule or regulation, suspensionthe Company’s Disclosure Letter sets forth a listing, settlement as of June 30, 2019, by account, of: (A) each borrower, customer or other contract party that has notified the Company or other administrative agreement or sanction byits Subsidiaries during the past twelve (12) months of, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, has asserted against the Company has complied with, and all documentation in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgagesits Subsidiaries, in each case applicable as of the time of such originationin writing, processing, underwriting any “lender liability” or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approval.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged insimilar claim, and, to the Knowledge of the CompanyCompany or its Subsidiaries, no thirdeach borrower, customer or other party that has given the Company or its Subsidiaries any oral notification of, or orally asserted to or against Company or its Subsidiaries, any such claim; and (B) all Loans (1) that are contractually past due ninety (90) days or more in the payment of principal and/or interest, (2) that are on non-party vendors accrual status, (including outside law firms 3) that are classified as “Pass 5,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import, (4) that are considered troubled debt restructurings or where the interest rate terms have been reduced and/or the maturity dates have been extended after the origination of the Loan due to concerns regarding the borrower’s ability to pay in accordance with the Loan’s original terms and (5) where a specific reserve allocation exists in connection therewith, in each case of clauses (B)(1) to (B)(5), together with the principal amount of and accrued and unpaid interest on each such Loan and the aggregate principal amount of and accrued and unpaid interest on such Loans as of such date; and (C) all other third-party foreclosure services providers) used assets classified by the Company has engaged in, directly or indirectly, (1) any foreclosures its Subsidiaries as real estate acquired through foreclosure or in violation lieu of any applicable Lawforeclosure, including but not limited to the Servicemembers Civil Relief Actin- substance foreclosures, and all other assets currently held that were acquired through foreclosure or in breach lieu of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Lawforeclosure.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Samples: Merger Agreement (First Community Bankshares Inc /Va/)
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesthe Company or any of its Subsidiaries were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, in accordance in all material respects with sound banking practices, and, to the knowledge of the Company, are not subject to any defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such Loans and all forms of pledges, mortgages and other collateral documents and security agreements are, in all material respects, enforceable, valid, true and genuine and what they purport to be, .
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor the Company’s practices of approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including, without limitation, the Truth In Lending Act, Regulations O and Z of the Federal Reserve Board, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in the Knowledge Company’s audited balance sheet at December 31, 2010 was, and the allowance for loan losses shown on the balance sheets in the Company’s Reports for periods ending after such date, in the opinion of management, was or will be adequate, as of the Company, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Companydates thereof.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(civ) None of the agreements pursuant to which the Company or any of its Subsidiaries has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue solely on account of a payment default by the obligor on any other form of recourse against the Companysuch Loan.
(dv) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the The Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule Letter sets forth a list of all Loans as of the date of this Agreement hereof by the Company or CommerceFirst Bank to any directors, executive officers and principal shareholders stockholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) Board (12 C.F.R. Part 215)) of the Company. There Company or any of its Subsidiaries, (B) there are no employee, officer, director or other Affiliate affiliate Loans on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, O and (C) all such Loans are and were originated in compliance in all material respects with all applicable Lawslaws.
(gvi) The Company is not now nor has it ever been since January 1Company’s Disclosure Letter sets forth a listing, 2012 subject to any fineas of November 30, suspension2011, settlement of all Loans (A) that are contractually past due ninety (90) days or other contract more in the payment of principal and/or interest, (B) that are on non-accrual status, (C) that are classified as “Watch”, “Special Mention”, “Substandard”, “Doubtful”, “Loss” or other administrative agreement or sanction bywords of similar import, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating (D) where a reasonable doubt exists as to the originationtimely future collectibility of principal and/or interest, sale whether or servicing not interest is still accruing or the loans are less than ninety (90) days past due, (E) where the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the origination of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, the Company has complied withLoan due to concerns regarding the borrower’s ability to pay in accordance with the Loan’s original terms, and all documentation (F) where a specific reserve allocation exists in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approvaltherewith.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesAcacia FSB or any of its Subsidiaries were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, in accordance in all material respects with sound banking practices, and are not subject to any known defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such Loans and all forms of pledges, mortgages and other collateral documents and security agreements are, in all material respects, enforceable, valid, true and genuine and what they purport to be, .
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor Acacia FSB’s practices of approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including, without limitation, the Truth In Lending Act, Regulations O and Z of the FRB, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in Acacia FSB’s audited balance sheet at December 31, 2011 was, and the Knowledge of allowance for loan losses shown on the Companybalance sheets in Acacia FSB’s Reports for periods ending after such date, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents except with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Company.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, 2005-2008 I/O Loans and the relevant Loan files are being maintained Second Lien Loans, as to which no representation or warranty is made) was or will be calculated in accordance with the relevant notes or other credit or security documents policies and procedures adopted by the Company’s written underwriting standards, in each case with all applicable requirements Board of applicable Law and government programsDirectors of Acacia FSB.
(civ) None of the agreements pursuant to which the Company Acacia FSB or any of its Subsidiaries has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue any other form solely on account of recourse against the Company.
(d) The Company has Previously Disclosed to Parent all claims for repurchases a payment default by the Company obligor on any such Loan occurring after the first six payments on such Loan, and the first six payments on such Loan (or such lesser amount of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, payments due as of the date hereof or the Closing Date.
(ehereof) Section 3.25(e) of the Company Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) have been made by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value obligor thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Datewithout default.
(f) Section 3.25(f) of the Company Disclosure Schedule sets forth a list of all Loans as of the date of this Agreement by the Company to any directors, officers and principal shareholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (12 C.F.R. Part 215)) of the Company. There are no employee, officer, director or other Affiliate Loans on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, and all such Loans are and were originated in compliance with all applicable Laws.
(g) The Company is not now nor has it ever been since January 1, 2012 subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, the Company has complied with, and all documentation in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approval.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesthe Company or any of its Subsidiaries were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, in accordance in all material respects with sound banking practices, and, to the Knowledge of the Company, are not subject to any defenses, setoffs or counterclaims, including any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such Loans and all forms of pledges, mortgages and other collateral documents and security agreements are, in all material respects, enforceable, valid, true and genuine and what they purport to be, .
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor the Company’s practices of approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including the Truth In Lending Act, Regulations O and Z of the FRB, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in the Knowledge Company’s audited balance sheet at December 31, 2017 was, and the allowance for loan losses shown on the balance sheets in the SEC Reports for periods ending after such date, in the opinion of management, were, or will be, adequate, as of the dates thereof, under GAAP.
(iv) Except as set forth in Section 3.2(w) of the Company’s Disclosure Letter, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Company.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(c) None none of the agreements pursuant to which the Company or any of its Subsidiaries has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue solely on account of a payment default by the obligor on any other form of recourse against the Companysuch Loan.
(d) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(eA) Section 3.25(e3.2(w) of the Company Company’s Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule Letter sets forth a list of all Loans as of the date of this Agreement hereof by the Company or Pilgrim Bank to any directors, executive officers and principal shareholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) FRB’s regulations (12 C.F.R. Part 215)) of the Company. There Company or any of its Subsidiaries, (B) there are no employee, officer, director or other Affiliate affiliate Loans on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which that was not in compliance with Regulation O, O and (C) all such Loans are and were originated in compliance in all material respects with all applicable Lawslaws.
(gvi) The Company is not now nor has it ever been since January 1Section 3.2(w) of the Company’s Disclosure Letter sets forth a listing, 2012 subject to any fineas of June 30, suspension2018, settlement by account, of: (A) each borrower, customer or other contract or other administrative agreement or sanction byparty which has notified Pilgrim Bank during the past twelve (12) months of, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, has asserted against the Company has complied with, and all documentation in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgagesPilgrim Bank, in each case applicable as of the time of such originationin writing, processing, underwriting any “lender liability” or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approval.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged insimilar claim, and, to the Knowledge of the CompanyCompany or Pilgrim Bank, no thirdeach borrower, customer or other party that has given the Company or Pilgrim Bank any oral notification of, or orally asserted to or against Company or Pilgrim Bank, any such claim; and (B) all Loans (1) that are contractually past due ninety (90) days or more in the payment of principal and/or interest, (2) that are on non-party vendors accrual status, (including outside law firms 3) that are classified as “Watch,” “Special Mention,” “Substandard,” “Doubtful,” “Loss” or words of similar import, (4) where a reasonable doubt exists as to the timely future collectibility of principal and/or interest, whether or not interest is still accruing or the loans are less than ninety (90) days past due, (5) where the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the origination of the Loan due to concerns regarding the borrower’s ability to pay in accordance with the Loan’s original terms, and (6) where a specific reserve allocation exists in connection therewith; and (C) all other third-party foreclosure services providers) used assets classified by the Company has engaged in, directly or indirectly, (1) any foreclosures Pilgrim Bank as real estate acquired through foreclosure or in violation lieu of any applicable Lawforeclosure, including but not limited to the Servicemembers Civil Relief Actin-substance foreclosures, and all other assets currently held that were acquired through foreclosure or in breach lieu of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Lawforeclosure.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All loans held by notesthe Company or any or any Subsidiary were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, in accordance in all material respects with sound banking practices, and, to the Knowledge of the Company, are not subject to any defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such loans and all forms of pledges, mortgages and other collateral documents and security agreements are, in all material respects, enforceable, valid, true and genuine and what they purport to be, .
(ii) to Neither the extent securedterms of any loan, has been secured by valid Liens any of the documentation for any loan, the manner in which any loans have been perfected administered and serviced, nor the Company's practices of approving or rejecting loan applications, violate in any material respect any federal,
(iii) to state, or local law, rule or regulation applicable thereto, including, without limitation, the Knowledge Truth In Lending Act, Regulations O and Z of the CompanyFederal Reserve or any successor agency, is a legalthe CRA, valid the Equal Credit Opportunity Act, and binding obligation of the obligor named thereinany state laws, enforceable in accordance with its terms (subject rules and regulations relating to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Companyconsumer protection, installment sales and usury.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(civ) None of the agreements pursuant to which the Company or any Subsidiary has sold or is servicing (i) Loans loans or pools of Loans loans or (ii) participations in Loans loans or pools of Loans loans contains any obligation to repurchase such Loans loans or interests therein or to pursue solely on account of a payment default by the obligor on any other form of recourse against the Companysuch loan.
(dv) The Company has Previously Disclosed As requested by Purchaser, prior to Parent all claims for repurchases by the Closing, the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Disclosure Schedule sets forth will provide Purchaser with a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date all loans (A) was that are contractually past due 90 ninety (90) days or more in the payment of principal and/or interest, (B) was that are on non-accrual status, (C) was that are classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” ("Watch", "Special Mention", "Substandard", "Doubtful", "Loss" or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) where a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans loans are less than 90 ninety (90) days past due or due, (BE) where the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which origination of the Loan was originally created loan due to concerns regarding the borrower’s 's ability to pay in accordance with such initial the loan's original terms, and (iiiF) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule sets forth where a list of all Loans as of the date of this Agreement by the Company to any directors, officers and principal shareholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (12 C.F.R. Part 215)) of the Company. There are no employee, officer, director or other Affiliate Loans on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, and all such Loans are and were originated in compliance with all applicable Laws.
(g) The Company is not now nor has it ever been since January 1, 2012 subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, the Company has complied with, and all documentation specific reserve allocation exists in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approvaltherewith.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Samples: Securities Purchase Agreement (Capitol Bancorp LTD)
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesthe Company or any of its Subsidiaries were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, and, to the knowledge of the Company, the Loans are not subject to any defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such Loans and all forms of pledges, genuine mortgages and what they purport to beother collateral documents and security agreements are, in all material respects, enforceable and valid.
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor the Company’s practices of approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including, without limitation, the Truth In Lending Act, Regulations O and Z of the Federal Reserve Board, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in the Knowledge Company’s audited balance sheet at March 31, 2011 was, and the allowance for loan losses shown on the balance sheets in the Company’s Reports for periods ending after such date, in the opinion of management, was or will be adequate, as of the Company, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Companydates thereof.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(civ) None of the agreements pursuant to which the Company or any of its Subsidiaries has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue solely on account of a payment default by the obligor on any other form of recourse against the Companysuch Loan.
(dA) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Company’s Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule Letter sets forth a list of all Loans as of the date of this Agreement hereof by the Company or New England Bank to any directors, executive officers and principal shareholders stockholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) Board (12 C.F.R. Part 215)) of the Company. There Company or any of its Subsidiaries, (B) there are no Loans to any employee, officer, director or other Affiliate Loans affiliate thereof on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, O and (C) all such Loans are and were originated in compliance in all material respects with all applicable Lawslaws.
(gvi) The Company is not now nor has it ever been since January 1Company’s Disclosure Letter sets forth a listing, 2012 subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing as of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1March 31, 2012, of all Loans (A) that are contractually past due ninety (90) days or more in the Company has complied withpayment of principal and/or interest, (B) that are on non-accrual status, (C) that are classified as “Watch,” “Special Mention,” “Substandard,” “Doubtful,” “Loss” or words of similar import, (D) where the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the origination of the Loan due to concerns regarding the borrower’s ability to pay in accordance with the Loan’s original terms and all documentation (E) where a specific reserve allocation exists in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approvaltherewith.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
Appears in 1 contract
Loan Matters. As of the date hereof (or, with respect to any Transferred Loan that becomes a Transferred Loan after the date hereof pursuant to replacement as contemplated in the definition thereof, as of the date of such replacement) and as of the Closing Date:
(a) Each loanTransferred Loan was solicited and originated, loan agreementand is and has been administered and, note where applicable, serviced, and the relevant Transferred Loan files are being maintained, in all material respects in accordance with the relevant notes or borrowing arrangement other credit or security documents, Seller’s written underwriting standards and with all applicable requirements of Laws, except for such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(including leases, credit enhancements, commitments, guarantees and interest-bearing assetsb) in which the Company is a creditor (collectively, “Loans”) currently outstanding Each Transferred Loan (i) is evidenced by notes, agreements or other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent secured, has been secured by valid Liens which have been perfected and perfected, (iii) to the Knowledge of the CompanySeller’s knowledge, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (terms, subject to bankruptcy, insolvency, fraudulent conveyance and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles (iv) is free from all material claims, defenses, rights of rescission, any discount, allowance, set-off, counterclaim, presently pending bankruptcy or other defenses by the Enforceability Exceptions)borrower, and (v) complies in all material respects with all applicable lending laws and regulations. In connection with the origination, acquisition, ownership, and servicing of all Transferred Loans, all applicable federal and state laws, rules and regulations have been, and are being, complied with by Seller in all material respects. All escrow accounts related to the Transferred Loans are being maintained in accordance, in all material respects, with applicable federal and state laws and in accordance, in all material respects, with any and all servicing agreements and terms of the Transferred Loans. As of the date hereof, there is no pending or, to Seller’s knowledge, threatened, litigation which may materially and adversely affect the title or interest of the Seller in and to each Transferred Loan, the collateral for such Transferred Loan and the promissory note or the mortgage or deed of trust and any related guarantees or the obligations of all obligors under such Transferred Loan and related documents, instruments and agreements. As of the date hereof, there are no pending or, to Seller’s knowledge, threatened, foreclosures, total or partial condemnation or repossession proceedings or insurance claims with respect to any Transferred Loan or the collateral for such Transferred Loan. In connection with the transfer of any Transferred Loan or the servicing thereof that require notice to the related borrower, the Seller will notify Purchaser, and will comply with all notice and reporting requirements of the Loan Documents and of any Law and cooperate with Purchaser and provide Purchaser evidence of compliance if requested by Purchaser. The notes or other credit or security documents with respect to each such outstanding Transferred Loan were in compliance in all material respects with all applicable Laws at the time of origination or purchase by the CompanySeller and are complete and correct in all material respects.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(c) None of the agreements pursuant to which the Company has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue any other form of recourse against the Company.
(d) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrower’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule sets forth a list of all Loans as of the date of this Agreement by the Company to any directors, officers and principal shareholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (12 C.F.R. Part 215)) of the Company. There are no employee, officer, director or other Affiliate Loans on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, and all such Loans are and were originated in compliance with all applicable Laws.
(g) The Company is not now nor has it ever been since January 1, 2012 subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating to the origination, sale or servicing of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, the Company has complied with, and all documentation in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approval.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
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Samples: Purchase and Assumption Agreement (CenterState Banks, Inc.)
Loan Matters. (a) Each loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) in which the Company is a creditor (collectively, “Loans”) currently outstanding (i) is evidenced All Loans held by notesCKF Bancorp or any of its Subsidiaries were made in all material respects for good, agreements valuable and adequate consideration in the ordinary course of the business, in accordance in all material respects with sound banking practices, and are not subject to any known defenses, setoffs or counterclaims, including without limitation any such as are afforded by usury or truth in lending laws, except as may be provided by bankruptcy, insolvency or similar laws or by general principles of equity. The notes or other evidences of indebtedness that are trueevidencing such Loans and all forms of pledges, mortgages and other collateral documents and security agreements are, in all material respects, enforceable, valid, true and genuine and what they purport to be, .
(ii) to Neither the extent securedterms of any Loan, has been secured by valid Liens any of the documentation for any Loan, the manner in which any Loans have been perfected administered and serviced, nor CKF Bancorp’s nor any of its Subsidiaries’ practices of approving or rejecting Loan applications, violate in any material respect any federal, state, or local law, rule or regulation applicable thereto, including, without limitation, the Truth In Lending Act, Regulations O and Z of the Federal Reserve Board, the CRA, the Equal Credit Opportunity Act, and any state laws, rules and regulations relating to consumer protection, installment sales and usury.
(iii) to The allowance for loan losses reflected in CKF Bancorp’s audited balance sheet at December 31, 2010 was, and the Knowledge allowance for loan losses shown on the balance sheets in the CKF Reports for periods ending after such date, in the opinion of management, was or will be adequate, as of the Company, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (subject to the Enforceability Exceptions). The notes or other credit or security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination or purchase by the Companydates thereof.
(b) Each outstanding Loan was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained in accordance with the relevant notes or other credit or security documents and the Company’s written underwriting standards, in each case with all applicable requirements of applicable Law and government programs.
(civ) None of the agreements pursuant to which the Company CKF Bancorp or any of its Subsidiaries has sold or is servicing (i) Loans or pools of Loans or (ii) participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein or to pursue solely on account of a payment default by the obligor on any other form of recourse against the Companysuch Loan.
(dv) The Company has Previously Disclosed to Parent all claims for repurchases by the Company of Loans that were sold to third parties by the Company that are outstanding or threatened (in writing), in each case, as of the date hereof or the Closing Date.
(e) Section 3.25(e) of the Company Disclosure Schedule sets forth a list of (i) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date (A) was contractually past due 90 days or more in the payment of principal and/or interest, (B) was on non-accrual status, (C) was classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “credit risk assets,” “concerned loans,” “watch list,” “impaired” or “special mention” (or words of similar import) by the Company, or any Governmental Entity (D) a specific reserve allocation existed in connection therewith or (E) was required to be accounted for as a troubled debt restructuring in accordance with ASC 310-40, (ii) each Loan that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date had an outstanding balance and/or unfunded commitment of $100,000 or more and that as of such date as to which (A) a reasonable doubt exists as to the timely future collectability of principal and/or interest, whether or not interest is still accruing or the Loans are less than 90 days past due or (B) the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the agreement under which the Loan was originally created due to concerns regarding the borrowerCKF Bancorp’s ability to pay in accordance with such initial terms, and (iii) each asset of the Company that as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date was classified as “other real estate owned,” “other repossessed assets” or as an asset to satisfy Loans, and the book value thereof as of such date. For each loan identified in accordance with the immediately preceding sentence, Section 3.25(e) of the Company Disclosure Schedule sets forth the outstanding balance, including accrued and unpaid interest, on each such Loan and the identity of the borrower thereunder as of September 30, 2015 and as of the last Business Day of the last calendar month prior to the Closing Date.
(f) Section 3.25(f) of the Company Disclosure Schedule Letter sets forth a list of all Loans as of the date of this Agreement hereof by the Company CKF Bancorp or Central Kentucky Federal to any directors, executive officers and principal shareholders (as such terms are defined in Regulation O of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) Board (12 C.F.R. Part 215)) of the Company. There CKF Bancorp or Central Kentucky Federal, (B) there are no employee, officer, director or other Affiliate affiliate Loans on which the borrower is paying a rate other than that reflected in the note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation O, O and (C) all such Loans are and were originated in compliance in all material respects with all applicable Lawslaws.
(gvi) The Company is not now nor has it ever been since January 1CKF Bancorp’s Disclosure Letter sets forth a listing, 2012 subject to any fineas of September 30, suspension2011, settlement of all Loans (A) that are contractually past due ninety (90) days or other contract more in the payment of principal and/or interest, (B) that are on non-accrual status, (C) that are classified as “Watch”, “Special Mention”, “Substandard”, “Doubtful”, “Loss” or other administrative agreement or sanction bywords of similar import, or any reduction in any loan purchase commitment from, any Governmental Entity or agency relating (D) where a reasonable doubt exists as to the originationtimely future collectability of principal and/or interest, sale whether or servicing not interest is still accruing or the loans are less than ninety (90) days past due, (E) where the interest rate terms have been reduced and/or the maturity dates have been extended subsequent to the origination of mortgage or consumer Loans or Loans guaranteed by any governmental agency.
(h) Since January 1, 2012, the Company has complied withLoan due to concerns regarding the borrower’s ability to pay in accordance with the Loan’s original terms, and all documentation (F) where a specific reserve allocation exists in connection with the origination, processing, underwriting and credit approval of any mortgage loan originated by the Company satisfied: (1) all applicable Laws with respect to the origination, insuring, purchase, sale, pooling, servicing, subservicing, loan modification, loss mitigation or filing of claims in connection with such mortgage loans, including, to the extent applicable, all Laws relating to real estate settlement procedures, consumer credit protection, truth in lending Laws, usury limitations, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, in each case applicable as of the time of such origination, processing, underwriting or credit approval; (2) the responsibilities and obligations relating to such mortgage loans set forth in any Contract between the Company and any Agency, loan investor or insurer; (3) the applicable rules, regulations, guidelines, procedures, handbooks and other requirements of any Agency, loan investor or insurer, in each case applicable as of the time of such origination, processing, underwriting or credit approval; and (4) the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to each such mortgage loan; in each case applicable as of the time of such origination, processing, underwriting or credit approvaltherewith.
(i) Since January 1, 2012, no loan investor representing greater than 10% of the purchased volume for any calendar year has indicated in writing to the Company that it has terminated or intends to terminate its relationship with the Company for poor performance, poor loan quality or concern with respect to the Company’s compliance with Laws.
(j) Since January 1, 2012, the Company has not engaged in, and, to the Knowledge of the Company, no third-party vendors (including outside law firms and other third-party foreclosure services providers) used by the Company has engaged in, directly or indirectly, (1) any foreclosures in violation of any applicable Law, including but not limited to the Servicemembers Civil Relief Act, or in breach of any binding Regulatory Agreement or (2) the conduct referred to as “robo-signing” or any other similar conduct of approving or notarizing documents relating to mortgage loans that do not comply with any applicable Law.
(k) Since January 1, 2012, the Company has not foreclosed upon, managed or taken a deed or title to, any real estate (other than single-family residential properties) without complying with all applicable FDIC environmental due diligence standards (including FDIC Bulletin FIL-14-93, and update FIL-98-2006) or foreclosed upon, managed or taken a deed or title to, any such real estate if the environmental assessment indicates the liabilities under Environmental Laws are likely in excess of the asset’s value.
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