FIFTEEN DAYS PRIOR
TO THE DATE HEREOF;
(VI)
AN OPINION OF COUNSEL FOR BORROWER IN FORM AND SUBSTANCE SATISFACTORY
TO LENDER;
(VII)
A BORROWING REQUEST AND A BORROWING BASE CERTIFICATE DATED AS OF THE
DATE OF THE FIRST LOAN, CERTIFIED BY THE CONTROLLER OR SENIOR VICE PRESIDENT OF
BORROWER;
(VIII)
A DULY EXECUTED ORIGINAL OF THE MERS AGREEMENT; AND
21
(IX)
SUCH OTHER DOCUMENTS, INSTRUMENTS, CERTIFICATES AND AGREEMENTS
(INCLUDING, WITHOUT LIMITATION, UCC TAX AND LIEN SEARCH RESULTS) AS LENDER OR
ITS LEGAL COUNSEL MAY REASONABLY REQUEST AT ANY TIME AT OR PRIOR TO THE DATE OF
THE INITIAL LOAN HEREUNDER.
(B)
NO PERSON, OTHER THAN LENDER, HOLDS ANY MORTGAGE, PLEDGE, LIEN,
SECURITY INTEREST OR OTHER CHARGE OR ENCUMBRANCE IN, AGAINST OR TO ANY OF THE
MORTGAGE LOANS IDENTIFIED BY THE BORROWER AS MORTGAGE COLLATERAL OR INCLUDED IN
ANY COMPUTATION OF THE COLLATERAL VALUE OF THE BORROWING BASE.
(C)
LENDER SHALL HAVE RECEIVED EVIDENCE SATISFACTORY TO IT THAT ALL
FILINGS AND OTHER ACTIONS NECESSARY OR DESIRABLE TO PERFECT AND PROTECT THE
LIENS CREATED BY THE SECURITY INSTRUMENTS SHALL HAVE BEEN COMPLETED (INCLUDING,
WITHOUT LIMITATION, THE FILING OF FINANCING STATEMENTS ON FORM UCC-1 AND FILING
OF UCC-3 AMENDMENTS OR TERMINATION STATEMENTS).
(D)
BORROWER SHALL HAVE PAID ALL FEES AND REIMBURSEMENTS TO BE PAID TO
LENDER PURSUANT TO ANY LOAN DOCUMENT, OR OTHERWISE DUE LENDER AND INCLUDING
REASONABLE FEES (NOT TO EXCEED $20,000) AND REASONABLE EXPENSES OF LENDER'S
ATTORNEYS.
SECTION 3.2
ALL LOANS.
THE OBLIGATION OF LENDER TO FUND ANY LOAN
PURSUANT TO THIS AGREEMENT IS SUBJECT TO THE FOLLOWING FURTHER CONDITIONS
PRECEDENT:
(A)
BORROWER SHALL HAVE DELIVERED TO LENDER A BORROWING REQUEST DATED
AS OF THE DATE OF SUCH LOAN, CERTIFIED BY THE CONTROLLER, A VICE PRESIDENT OR
SENIOR VICE PRESIDENT OF BORROWER, AND THE REQUIRED MORTGAGE DOCUMENTS FOR ALL
ELIGIBLE MORTGAGE LOANS OTHER THAN WET LOANS;
(B)
ALL OTHER PROPERTY IN WHICH BORROWER HAS GRANTED A LIEN TO LENDER
SHALL HAVE BEEN PHYSICALLY DELIVERED TO THE POSSESSION OF LENDER, TO THE EXTENT
REQUIRED TO BE SO DELIVERED UNDER THE LOAN DOCUMENTS;
(C)
THE REPRESENTATIONS AND WARRANTIES OF EACH RELATED PERSON
CONTAINED IN THIS AGREEMENT OR ANY SECURITY INSTRUMENT (OTHER THAN THOSE
REPRESENTATIONS AND WARRANTIES WHICH ARE BY THEIR TERMS EXPRESSLY LIMITED TO THE
DATE OF THIS AGREEMENT) SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON
AND AS OF THE DATE OF SUCH LOAN, AS THOUGH MADE ON AND AS OF SUCH DATE, BOTH
BEFORE AND AFTER GIVING EFFECT TO THE BORROWING AND THE APPLICATION OF THE
PROCEEDS THEREOF;
(D)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD RESULT FROM SUCH BORROWING OR THE APPLICATION OF THE
PROCEEDS THEREFROM;
(E)
NO CHANGE OR EVENT WHICH CONSTITUTES A MATERIAL ADVERSE EFFECT
SHALL HAVE OCCURRED AND BE CONTINUING AS OF THE DATE OF SUCH LOAN;
(F)
THE FUNDING ACCOUNT, THE SETTLEMENT ACCOUNT AND THE OPERATING
ACCOUNT SHALL BE ESTABLISHED AND IN EXISTENCE;
(G)
THE MAKING OF SUCH LOAN SHALL NOT BE PROHIBITED BY ANY
GOVERNMENTAL REQUIREMENT