Affirmative Covenants of Seller. On and as of the date of this Agreement and each Purchase Date and at all times while this Agreement and any Transaction thereunder is in effect or any Repurchase Obligations remain outstanding: (a) Seller shall promptly notify Buyer upon notice or knowledge of any event and/or condition that could reasonably be expected to have a Material Adverse Effect. (b) Seller shall give notice to Buyer of the following (accompanied by an Officer’s Certificate setting forth details of the occurrence referred to therein and stating what actions Seller has taken or proposes to take with respect thereto): (i) promptly upon receipt by Seller of notice or knowledge of the occurrence of any monetary or material non-monetary Default or Event of Default; (ii) with respect to any Purchased Asset sold to Buyer hereunder, promptly following receipt of any unscheduled Principal Payment (in full or in part); (iii) with respect to any Purchased Asset sold to Buyer hereunder, promptly following receipt by Seller of notice or knowledge that the related Mortgaged Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as to affect adversely the value of such Mortgaged Property; (iv) promptly upon receipt of notice by Seller or knowledge of (A) any Purchased Asset that becomes a Defaulted Asset, (B) any lien or security interest (other than security interests created hereby) on, or claim asserted against, any Purchased Asset or, to Seller’s knowledge, the underlying collateral therefor, (C) any event or change in circumstances that has or could reasonably be expected to have a material adverse effect on the Market Value of a Purchased Asset, or (D) any change with respect to Servicer or in the servicing of any Purchased Asset; (v) promptly, and in any event within ten (10) days after service of process on any of the following, give to Buyer notice of all material litigation, actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings affecting Seller or affecting any of the assets of Seller before any Governmental Authority that (A) questions or challenges the validity or enforceability of any of the Transaction Documents or any action to be taken in connection with the transactions contemplated hereby, (B) makes a claim or claims in an aggregate amount greater than $250,000, (C) which, individually or in the aggregate, if adversely determined could reasonably expect to have a Material Adverse Effect, (D) requires filing with the SEC in accordance with the 1934 Act and any rules thereunder or (E) raises any material lender licensee issues with respect to any Purchased Asset; (vi) promptly upon any transfer of any underlying Mortgaged Property or any direct or indirect equity interest in any Mortgagor of which Seller has knowledge, whether or not consent to such transfer is required under the applicable Purchased Asset Documents; and (vii) promptly, and in any event within ten (10) days after Seller or any of its ERISA Affiliates knows or has reason to know that any “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur in respect of a Plan that, individually or in the aggregate, either has resulted, or could reasonably be expected to result, in a Material Adverse Effect. (c) Seller shall provide Buyer with copies of such documents (to the extent such documents are reasonably requested by Xxxxx and can be provided by Seller without undue burden) as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10 hereof. (d) Seller shall defend the right, title and interest of Xxxxx in and to the Purchased Assets and any Hedging Transactions against, and take such other action as is necessary to remove, any liens, security interests, claims, encumbrances, charges and demands of all Persons thereon (other than security interests granted to Buyer hereunder and Permitted Encumbrances), and take any such other action as is necessary to obtain or preserve a first priority perfected security interest in the Purchased Assets and any Hedging Transactions. (e) Seller will permit Buyer or its designated representative to inspect any of Seller’s records with respect to all or any portion of the Purchased Assets and the conduct and operation of its business related thereto at such reasonable times and with reasonable frequency requested by Buyer or its designated representative upon Buyer’s reasonable notice to the Seller and to make copies of extracts of any and all thereof; provided, that, so long as no Event of Default has occurred and is continuing, the costs and expenses of such inspections payable by the Seller shall be limited to one (1) such inspection per calendar year. (f) If any amount payable under or in connection with any of the Purchased Assets shall be or become evidenced by any promissory note, other instrument or chattel paper (as each of the foregoing is defined under the UCC), such note, instrument or chattel paper shall be promptly delivered to Buyer or its designee, duly endorsed in a manner satisfactory to Buyer or if any collateral or other security shall subsequently be delivered to Seller in connection with any Purchased Asset, Seller shall immediately deliver or forward such item of collateral or other security to Buyer or its designee, together with such instruments of assignment as Buyer may reasonably request. (g) Seller shall provide (or cause to be provided) to Buyer the following financial and reporting information: (i) the Monthly Statement; (ii) within sixty (60) days following the end of each of the first three fiscal quarters, the unaudited Quarterly Report, together with all financial statements, operating statements, rent rolls and occupancy information that Seller or Servicer has received relating to the Purchased Assets for the related fiscal quarter; provided, further, that Seller shall use reasonable efforts to require all Mortgagors under the applicable Mortgage Loans to comply with the reporting requirements set forth in the applicable Purchased Asset Documents; (iii) within one hundred and twenty (120) days after the end of each fiscal year of Guarantor (A) the audited balance sheets of Guarantor and its consolidated subsidiaries, and unaudited balance sheet of Pledgor and Seller, in each case as at the end of such fiscal year, (B) the related statements of income, retained earnings and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, (C) an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said financial statements fairly present the financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of and for such fiscal year in accordance with GAAP, (D) a certification from such accountants that, in making the examination necessary therefor, no information was obtained of any monetary or material non-monetary Default or Event of Default except as specified therein, and (E) projections of Guarantor and Seller of the operating budget and cash flow budget of Guarantor for the following fiscal year; (iv) a Financial Covenant Compliance Certificate; (v) within sixty (60) days following the end of each of the first three quarters, and within one hundred and twenty (120) days following the end of each fiscal year, as the case may be, an Officer’s Certificate of Seller in form and substance reasonably satisfactory to Buyer certifying that during such fiscal quarter or year Seller has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, in each case, in all material respects (or in the event of any failure to so observe, perform or satisfy, the details of such failure), and that to the knowledge of the Seller (i) any Event of Default and any event or circumstance that has occurred that is reasonably likely to result in a Material Adverse Effect or (ii) there has occurred no Event of Default and no event or circumstance has occurred that is reasonably likely to result in a Material Adverse Effect; (vi) servicing data tapes for each of Purchased Asset, to be delivered in accordance with the applicable servicing agreement; (vii) within ten (10) Business Days after Xxxxx’s request, such further information with respect to the operation of any Mortgaged Property, Purchased Asset, the financial affairs of Seller, Pledgor or Guarantor and any Plan as may be reasonably requested by Xxxxx, including all business plans prepared by or for Seller (viii) upon the request of Buyer no more often than annually, updated Appraisals of the Mortgaged Properties relating to the Purchased Assets, at Buyer’s sole cost and expense; provided, however, as long as no Event of Default has occurred and is continuing, Buyer shall not request an updated appraisal more than once in any 12 month period; and (ix) such other reports as Buyer shall reasonably request (to the extent such requests do not unduly burden Seller). (h) Seller shall at all times comply in all material respects with all laws (including, without limitation, Prescribed Laws), ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Seller or any of its assets, and Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence and all licenses material to its business. (i) Seller agrees that, from time to time upon the prior written request of Xxxxx, it shall (A) execute and deliver such further documents, provide such additional information and reports and perform such other acts as Buyer may reasonably request in order to insure compliance with all Prescribed Laws and to fully effectuate the purposes of this Agreement and
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
Affirmative Covenants of Seller. On and as of the date of this Agreement and each Purchase Date and at all times while this Agreement and any Transaction thereunder is in effect or any Repurchase Obligations remain outstanding:
(a) Seller shall promptly notify Buyer upon notice or knowledge of any event and/or condition that could reasonably be expected To the extent not otherwise disclosed pursuant to have a Material Adverse Effect.
(b) Section 12(i), Seller shall give notice to Buyer of the following (accompanied by an Officer’s Certificate setting forth details of the occurrence referred to therein and stating what actions Seller has taken or proposes to take with respect thereto):
(i) promptly upon receipt by Seller of written notice or knowledge Knowledge of the occurrence of any monetary or material non-monetary Default or Event of Default;
(ii) with respect to any Purchased Asset Loan sold to Buyer hereunder, promptly following receipt of any unscheduled Principal Payment (in full or in part);
(iii) with respect to any Purchased Asset Loan sold to Buyer hereunder, promptly following receipt by Seller of notice or knowledge that the related Mortgaged Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as to materially and adversely affect adversely the value of such Mortgaged Property;
(iv) promptly upon receipt becoming aware that any Purchased Loan is not an Eligible Loan or that any of notice by Seller the representations and warranties set forth in Exhibit V with respect to any Purchased Loan is untrue or knowledge incorrect in any respect;
(v) promptly upon Seller’s Knowledge of (A1) any Purchased Asset Loan that becomes a Defaulted AssetLoan, (B2) any lien or security interest (other than security interests created hereby) on, or claim asserted against, any Purchased Asset orLoan, to Seller’s knowledge, or the underlying collateral therefor, or (C3) any event or change in circumstances that has or could reasonably be expected to have a material adverse effect on materially and adversely affect the Market Value of a Purchased Asset, Loan or (D) any change with respect to Servicer or in the servicing of any Purchased AssetMortgaged Property;
(vvi) promptly, and in any event within ten (10) days after service of process on Seller of any of the following, give to Buyer notice of all material litigation, actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings affecting Seller or affecting any of the assets of Seller before any Governmental Authority that (A1) questions or challenges the validity or enforceability of any of the Transaction Documents or any action to be taken in connection with the transactions contemplated hereby, or (B2) makes a claim or claims in an aggregate amount greater than $250,000, (C) which, individually or in the aggregate, if adversely determined could reasonably expect to have a Material Adverse Effect, (D) requires filing with the SEC in accordance with the 1934 Act and any rules thereunder or (E) raises any material lender licensee issues with respect to any Purchased Asset;1,000,000; and
(vivii) promptly upon any transfer Transfer of any underlying Mortgaged Property or any direct or indirect equity interest in any Mortgagor of which Seller has knowledgeMortgagor, whether or not consent to such transfer Transfer is required under the applicable Purchased Asset Loan Documents; and
(vii) promptly, and in any event within ten (10) days after Seller or any of its ERISA Affiliates knows or has reason to know that any “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur in respect of a Plan that, individually or in the aggregate, either has resulted, or could reasonably be expected to result, in a Material Adverse Effect.
(cb) Seller shall provide Buyer with copies of such documents (to the extent such documents are reasonably requested by Xxxxx and can be provided by Seller without undue burden) as Buyer may reasonably request and in Seller’s possession evidencing the truthfulness of the representations set forth in Section 10 hereof10.
(dc) Seller shall defend the right, title and interest of Xxxxx Buyer in and to the Purchased Assets and any Hedging Transactions Loans against, and take such other action as is necessary to remove, any the liens, security interests, claims, encumbrances, charges and demands of all Persons thereon (other than security interests granted to Buyer hereunder and Permitted Encumbranceshereunder), and take any such other action as is necessary to obtain or preserve a first priority perfected security interest in the Purchased Assets and any Hedging Transactions.
(ed) Seller will permit Buyer or its designated representative to inspect any of Seller’s records with respect to all or any portion of the Purchased Assets Loans and the conduct and operation of its business related thereto at such reasonable times and with reasonable frequency requested by Buyer or its designated representative upon Buyer’s reasonable notice to the Seller and to make copies of extracts of any and all thereof; provided, that, (so long as no Event of Default has occurred and is continuing, the costs and expenses of such inspections payable by the Seller shall be limited not to one (1) such inspection exceed twice per calendar year) requested by Buyer or its designated representative in writing. So long as no Event of Default has occurred and is continuing, (i) any such inspection shall be at Buyer’s sole cost and expense, (ii) Buyer shall act in a commercially reasonable manner in requesting and conducting any such inspections and (iii) shall keep all information obtained in connection with such inspections confidential in accordance with customary market standards regarding confidentiality and in accordance with Requirements of Law.
(fe) If any amount payable under or in connection with any of the Purchased Assets Loans shall be or become evidenced by any promissory note, other instrument or chattel paper (as each of the foregoing is defined under the UCC), such note, instrument or chattel paper shall shall, within 3 Business Days following receipt thereof by Seller, be promptly delivered to Buyer or its designeethe Custodian, duly endorsed in a manner reasonably satisfactory to Buyer in accordance with this Agreement or if any collateral or other security shall subsequently be delivered to Seller in connection with any Purchased AssetLoan, Seller shall immediately shall, within 3 Business Days following receipt thereof, deliver or forward such item of collateral or other security to Buyer or its designeethe Custodian, together with such instruments of assignment as Buyer may reasonably requestrequest in accordance with this Agreement.
(gf) Seller shall provide (or cause to be provided) to Buyer the following financial and reporting information:
(i) the Monthly Statement;
(ii) the Quarterly Report, together with all operating statements and occupancy information that Seller has received relating to the Purchased Loans for the related fiscal quarter;
(iii) the Financial Covenant Compliance Certificate;
(iv) within sixty forty-five (6045) days following after the end of each of the first three quarterly fiscal quarters, the unaudited Quarterly Report, together with all financial statements, operating statements, rent rolls and occupancy information that Seller or Servicer has received relating to the Purchased Assets for the related fiscal quarter; provided, further, that Seller shall use reasonable efforts to require all Mortgagors under the applicable Mortgage Loans to comply with the reporting requirements set forth in the applicable Purchased Asset Documents;
(iii) within one hundred and twenty (120) days after the end periods of each fiscal year of Guarantor (A) Guarantor, the audited unaudited, consolidated balance sheets of Guarantor and its consolidated subsidiariesGuarantor, and unaudited balance sheet of Pledgor and Seller, in each case as at the end of such fiscal year, (B) period and the related unaudited, consolidated statements of income, income and retained earnings and of cash flows for Guarantor for such year, setting forth period and the portion of the fiscal year through the end of such period (and in each case with comparisons to applicable information in comparative form the figures for financial statements from the previous year), (C) accompanied by an opinion thereon Officer’s Certificate of independent certified public accountants of recognized national standingGuarantor, which opinion shall not be qualified as to scope of audit or going concern and certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of and for such fiscal year in accordance with GAAP, (D) a certification from such accountants thatconsistently applied, in making as at the examination necessary therefor, no information was obtained of any monetary or material non-monetary Default or Event of Default except as specified thereinend of, and for, such period (E) projections of Guarantor and Seller of the operating budget and cash flow budget of Guarantor for the following fiscal subject to normal year;
(iv) a Financial Covenant Compliance Certificate-end audit adjustments);
(v) within sixty forty-five (6045) days following the end of each of the first three quarters, and or within one hundred and twenty ninety (12090) days following the end of each fiscal year, as the case may be, an Officer’s Certificate of Seller in form and substance reasonably satisfactory to Buyer certifying that during such fiscal quarter or year Seller has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, in each case, in all material respects (or in the event of any failure to so observe, perform or satisfy, the details of such failure), and that to the knowledge of the Seller (i) any no Default or Event of Default and any event or circumstance that has occurred that is reasonably likely to result in a Material Adverse Effect or (ii) there has occurred no Event of Default and no event or circumstance has occurred that is reasonably likely to result in a Material Adverse Effectoccurred;
(vi) servicing data tapes within ninety (90) days after the end of each fiscal year of Guarantor, the consolidated balance sheets of Guarantor as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows for each Guarantor for such year, accompanied by an opinion thereon of Purchased Assetindependent certified public accountants of recognized national standing, which opinion shall not be qualified as to be delivered scope of audit or going concern and shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor as at the end of, and for, such fiscal year in accordance with the applicable servicing agreementGAAP;
(vii) within ten (10) Business Days after XxxxxBuyer’s request, such further information with respect to the operation of any Mortgaged Property, Purchased AssetLoan, the financial affairs of Seller, Pledgor Seller or Guarantor and any Plan and Multiemployer Plan as may be reasonably requested by XxxxxBuyer, including all business plans prepared by or for Seller
(viii) upon the request of Buyer no more often than annually, updated Appraisals of the Mortgaged Properties relating to the Purchased Assets, at Buyer’s sole cost and expense; provided, however, that with respect to information not previously known to, or in the possession of, Guarantor relating to any Multiemployer Plan, Guarantor shall be required to provide only such information as long as no Event of Default has occurred and is continuing, Buyer shall not request an updated appraisal more than once in any 12 month periodmay be obtained through its good faith efforts; and
(ixviii) such other reports as Buyer shall reasonably request (to the extent such requests do not unduly burden Seller)request.
(hg) Seller shall at all times comply in all material respects with all laws (including, without limitation, Prescribed Laws), ordinances, rules and regulations Requirements of any federal, state, municipal or other public authority Law having jurisdiction over Seller or any of its assets, and Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence and all licenses material to its business.
(h) Guarantor shall at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions in accordance with GAAP and set aside on its books from its earnings for each fiscal year all such proper reserves in accordance with GAAP.
(i) Seller agrees thatshall advise Buyer in writing of the opening of any new chief executive office of Seller or the closing of any such office and of any change in Seller’s name or the places where the books and records pertaining to the Purchased Loans are held not less than 5 Business Days prior to taking any such action.
(j) Seller shall observe, from time perform and satisfy all the terms, provisions, covenants and conditions required to time upon be observed, performed or satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the prior written request Transaction Documents. Seller will timely file or caused to be filed all required U.S. federal and other material Tax returns and will timely pay all U.S. federal and other material Taxes, except to the extent that such Taxes are being contested in good faith by appropriate proceedings diligently conducted, and adequate reserves are maintained with respect to such Taxes in accordance with GAAP.
(k) Seller shall maintain its existence as a limited liability company, organized solely and in good standing under the law of Xxxxxthe State of Delaware and shall not dissolve, it liquidate, merge with or into any other Person or otherwise change its organizational structure or documents (except in connection with a Capital Markets Event) or identity or incorporate or organize in any other jurisdiction.
(l) Seller shall maintain all records with respect to the Purchased Loans and the conduct and operation of its business with no less a degree of prudence than if the Purchased Loans were held by Seller for its own account.
(Am) execute Seller shall provide Buyer with notice (including as part of its reporting requirements pursuant to Section 12(g)) of each material modification of any Purchased Loan Documents consented to in writing by Seller (including such modifications which do not constitute a Significant Modification).
(n) Seller shall at all times be treated as a qualified REIT subsidiary, as defined in Section 856(i) of the Code.
(o) Seller shall, and pursuant to Irrevocable Redirection Notices shall direct the Underlying Obligors under the Purchased Loans and all other applicable Persons to, deposit all Income in respect of the Purchased Loans into the Blocked Account in accordance with Section 5(a) hereof on the day the related payments are due. Seller (a) shall comply with and enforce each Irrevocable Redirection Notice, (b) shall not amend, modify, waive, terminate or revoke any Irrevocable Redirection Notice without Buyer’s consent in its sole discretion, and (c) shall take all reasonable steps to enforce each Irrevocable Redirection Notice. In connection with each principal payment or prepayment under a Purchased Loan, Seller shall provide or cause to be provided to Buyer and Custodian sufficient detail to enable Buyer and Custodian to identify the Purchased Loan to which such payment applies. If Seller receives any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for any Purchased Loans, or otherwise in respect thereof, Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and, to the extent such rights are transferable, deliver such further documentsthe same to Buyer or its designee in the exact form received, provide such additional information together with duly executed instruments of transfer, stock powers or assignment in blank and reports and perform such other acts documentation as Buyer may shall reasonably request request; provided that if any such rights are not transferrable, Seller shall do or cause to do all things reasonably necessary in order to insure compliance with obtain the consent of the underlying borrower or any other party to such transfer. If any Income is received by Seller or any Affiliate of Seller, Seller shall pay or deliver such Income to Buyer on behalf of Buyer within two (2) Business Days after receipt, and, until so paid or delivered, hold such Income in trust for Buyer, segregated from other funds of Seller.
(p) Seller may propose, and Buyer will consider, but shall be under no obligation to approve, strategies for the foreclosure or other realization upon the security for any Purchased Loan that has become a Defaulted Loan.
(q) Purchased Loans shall be serviced only by Servicer or a servicer expressly approved in writing by Buyer.
(r) Seller shall enter into and, at all Prescribed Laws and to fully effectuate times during the purposes term of this Agreement andmaintain in full force and effect, Hedging Transactions with respect to all Purchased Loans that are fixed rate loans or that pay interest at a floating rate based on a base right other than the London interbank offered rate, in each case form and substance reasonably satisfactory to Buyer.
(s) In the event that Guarantor terminates Manager as Guarantor’s external manager pursuant to the Amended and Restated Management Agreement dated as of March 26, 2013, between Guarantor and Manager, any replacement external manager or switch to internal management shall be subject to Buyer’s prior written approval, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Affirmative Covenants of Seller. On and as of During the date term of this Agreement and each Purchase Date and at all times while this Agreement and so long as any Transaction thereunder is in effect or any Repurchase Obligations remain outstandinghereunder:
(a) Each Seller shall promptly notify Buyer upon notice or knowledge of any event and/or condition that could reasonably be expected to have a Material Adverse Effect; provided, however, that nothing in this Section 11 shall relieve any Seller of its obligations under this Agreement.
(b) Each Seller shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 9.
(c) Each Seller (i) shall defend the right, title and interest of Buyer in and to the Collateral against, and take such other action as is necessary to remove, the liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (ii) shall, at Buyer’s reasonable request, take all action necessary to ensure that Buyer will have a first priority security interest in the Purchased Loans subject to any of the Transactions in the event such Transactions are recharacterized as secured financings.
(d) Each Seller shall notify Buyer and the Depository of the occurrence of any Default or Event of Default as soon as possible but in no event later than the second (2nd) Business Day after obtaining actual knowledge of such event.
(e) Each Seller shall give notice to Buyer of the following (except in the case of clause (i) below, accompanied by an Officerofficer’s Certificate certificate setting forth details of the occurrence referred to therein and stating what actions such Seller has taken or proposes to take with respect thereto):
(i) promptly upon receipt by Seller of notice or knowledge of the occurrence of any monetary or material non-monetary Default or Event of Default;
(ii) with respect to any Purchased Asset sold Loan subject to Buyer a Transaction hereunder, promptly (and in any event within two (2) Business Days) following receipt of any unscheduled Principal Payment (in full or in part);
(iiiii) with respect to any Purchased Asset Loan sold to Buyer hereunder, promptly (and in any event within two (2) Business Days) following receipt by such Seller of notice or knowledge that the any related Mortgaged Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as as, in each case, to materially and adversely affect adversely the value of such Mortgaged Property;
(iviii) promptly upon (and in any event within two (2) Business Days) following receipt of notice by such Seller or knowledge of (Ai) the occurrence of any payment default or other material default under the Loan Documents for any Purchased Asset that becomes a Defaulted AssetLoan, (Bii) any lien or security interest (other than security interests created hereby) on, or claim asserted against, any Purchased Asset Loan or, to the best knowledge of such Seller’s knowledge, the underlying collateral therefor, therefor or (Ciii) any event or change in circumstances that has or could reasonably be expected to have a material and adverse effect on the Market Value of a Purchased Asset, or (D) any change with respect to Servicer or in the servicing of any Purchased Asset;Loan; and
(viv) promptly, and in any event within ten three (103) days Business Days after service of process on any of the following, give to Buyer notice of all material litigation, actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings directly affecting such Seller or directly affecting any of the assets of such Seller before any Governmental Authority that (Ai) questions or challenges the validity or enforceability of any of the Transaction Documents or any action to be taken in connection with the transactions contemplated hereby, (Bii) makes a claim or claims in an aggregate amount greater than $250,0001,000,000, or (Ciii) which, individually or in the aggregate, if adversely determined could reasonably expect be likely to have a Material Adverse Effect, (D) requires filing with the SEC in accordance with the 1934 Act and any rules thereunder or (E) raises any material lender licensee issues with respect to any Purchased Asset;
(vi) promptly upon any transfer of any underlying Mortgaged Property or any direct or indirect equity interest in any Mortgagor of which Seller has knowledge, whether or not consent to such transfer is required under the applicable Purchased Asset Documents; and
(vii) promptly, and in any event within ten (10) days after Seller or any of its ERISA Affiliates knows or has reason to know that any “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur in respect of a Plan that, individually or in the aggregate, either has resulted, or could reasonably be expected to result, in a Material Adverse Effect.
(cf) Each Seller shall provide deliver to Buyer (i) notice of the occurrence of any Loan Event of Default promptly (and in any event not later than two (2) Business Days) after the earlier of the date that such Seller receives notice or has actual knowledge thereof and (ii) any other information with copies of such documents (respect to the extent such documents are any Purchased Loan as may be reasonably requested by Xxxxx and can be provided by Seller without undue burden) as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10 hereoffrom time to time.
(dg) Seller shall defend the right, title and interest of Xxxxx in and to the Purchased Assets and any Hedging Transactions against, and take such other action as is necessary to remove, any liens, security interests, claims, encumbrances, charges and demands of all Persons thereon (other than security interests granted to Buyer hereunder and Permitted Encumbrances), and take any such other action as is necessary to obtain or preserve a first priority perfected security interest in the Purchased Assets and any Hedging Transactions.
(e) Each Seller will permit Buyer or its designated representative to inspect any of such Seller’s records with respect to all or any portion of the Purchased Assets Collateral and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency requested by Buyer (but not more than once in any calendar year so long as no Event of Default or its designated representative upon Buyer’s reasonable notice to the Seller Diligence Event exists), and to make copies of extracts of any and all thereof; provided, that, so long as no Event subject to the terms of Default has occurred any confidentiality agreement between Buyer and is continuing, the costs and expenses of such inspections payable by the Seller shall be limited to one (1) such inspection per calendar yearapplicable Seller.
(fh) At any time from time to time upon the reasonable request of Buyer, at the sole expense of the applicable Seller, each Seller will promptly and duly execute and deliver to Buyer such further instruments and documents and take such further actions as Buyer may reasonably request for the purposes of obtaining or preserving the full benefits of this Agreement including the security interests granted hereunder and of the rights and powers herein granted (including, among other things, filing such UCC financing statements as Buyer may reasonably request). If any amount payable under or in connection with any of the Purchased Assets Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper (as each of the foregoing is defined under the UCC)paper, such note, instrument or chattel paper shall be promptly immediately delivered to Buyer or its designeeBuyer, duly endorsed in a manner reasonably satisfactory to Buyer or if any collateral or other security shall subsequently Buyer, to be held as Collateral pursuant to this Agreement, and the documents delivered to Seller in connection with any Purchased Asset, Seller shall immediately deliver or forward such item of collateral or other security to Buyer or its designee, together with such instruments of assignment as Buyer may reasonably requestherewith.
(gi) Each Seller shall provide (or cause to be provided) to Buyer with the following financial and reporting information:information (which shall be provided by email to each of the parties listed as “Buyer Reporting Parties” on Annex I attached hereto):
(i) the Monthly Statement;
Within forty-five (ii) within sixty (6045) days following after the end last day of each of the first three fiscal quartersquarters in any fiscal year, Guarantor’s consolidated and unaudited and such Seller’s unaudited statements of income and statements of changes in cash flow for such quarter and balance sheets as of the unaudited Quarterly Reportend of such quarter, together in each case presented fairly in accordance with GAAP and certified as being true and correct by an officer’s certificate;
(ii) Within ninety (90) days after the last day of its fiscal year, Guarantor’s consolidated and audited, and such Seller’s unaudited, statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year, in each case presented fairly in accordance with GAAP, and accompanied, in all financial statementscases, operating statements, rent rolls and occupancy information that Seller or Servicer has received relating by an unqualified report of a nationally recognized independent certified public accounting firm reasonably acceptable to the Purchased Assets for the related fiscal quarter; provided, further, that Seller shall use reasonable efforts to require all Mortgagors under the applicable Mortgage Loans to comply with the reporting requirements set forth in the applicable Purchased Asset DocumentsBuyer;
(iii) If not provided by the Servicer, within one hundred and twenty thirty (12030) days after the end last day of each fiscal year of Guarantor calendar month, any and all property level financial information (Aincluding without limitation rent rolls and operating statements) received with respect to the audited balance sheets of Guarantor and its consolidated subsidiaries, and unaudited balance sheet of Pledgor and Seller, in each case as at the end of Purchased Loans by such fiscal year, (B) the related statements of income, retained earnings and cash flows for Seller or an Affiliate during such year, setting forth in each case in comparative form the figures for the previous year, (C) an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said financial statements fairly present the financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of and for such fiscal year in accordance with GAAP, (D) a certification from such accountants that, in making the examination necessary therefor, no information was obtained of any monetary or material non-monetary Default or Event of Default except as specified therein, and (E) projections of Guarantor and Seller of the operating budget and cash flow budget of Guarantor for the following fiscal yearcalendar month;
(iv) a Financial Covenant Compliance Certificate;
Within forty-five (v45) days after the last day of each of the first, second and third quarters and within sixty (60) days following after the last day of the fourth quarter in any fiscal year, an officer’s certificate from such Seller addressed to Buyer certifying that, as of the end of each such quarter, (x) such Seller is in compliance with all of the first three quartersterms, conditions and within one hundred and twenty requirements of this Agreement, (120y) days following the end of each fiscal year, as the case may be, an Officer’s Certificate of Seller in form and substance reasonably satisfactory to Buyer certifying that during such fiscal quarter no Default or year Seller has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, in each case, in all material respects (or in the event of any failure to so observe, perform or satisfy, the details of such failure), and that to the knowledge of the Seller (i) any Event of Default exists and any event or circumstance that has occurred that (z) Guarantor is reasonably likely to result in a Material Adverse Effect or (ii) there has occurred no Event of Default and no event or circumstance has occurred that is reasonably likely to result in a Material Adverse Effect;
(vi) servicing data tapes for each of Purchased Asset, to be delivered in accordance compliance with the applicable servicing agreement;
(vii) within ten (10) Business Days after Xxxxx’s request, such further information with respect to the operation of any Mortgaged Property, Purchased Asset, the financial affairs of Seller, Pledgor or Guarantor and any Plan as may be reasonably requested by Xxxxx, including all business plans prepared by or for Seller
(viii) upon the request of Buyer no more often than annually, updated Appraisals covenants set forth in Section 8 of the Mortgaged Properties relating to the Purchased Assets, at Buyer’s sole cost and expense; provided, however, as long as no Event Guaranty (including a calculation of Default has occurred and is continuing, Buyer shall not request an updated appraisal more than once in any 12 month periodeach such financial covenant); and
(ixv) such other The Sellers shall cause the Servicer, no later than the fourth (4th) Business Day preceding each Payment Date (as defined in the Servicing Agreement), to provide reports substantially in the form attached hereto as Buyer shall reasonably request (to the extent such requests do not unduly burden Seller)Exhibit XVIII.
(hj) Each Seller shall at all times comply in all material respects with all laws (including, without limitation, Prescribed Laws)laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over such Seller or any of its assets, assets and such Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence existence, and all licenses material to its business.
(k) Each Seller shall at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions in accordance with GAAP and set aside on its books from its earnings for each fiscal year all such proper reserves in accordance with GAAP.
(l) Each Seller shall observe, perform and satisfy all the terms, provisions, covenants and conditions required to be observed, performed or satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the Transaction Documents (including, for the avoidance of doubt, all costs, fees and expenses due to each of the Appraisal Review Agent and the Verification Agent). Each Seller shall pay and discharge all Taxes, levies, liens and other charges on its assets and on the Collateral that, in each case, in any manner would create any lien or charge upon the Collateral, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided in accordance with GAAP in all material respects. Each Seller shall timely file all Tax returns required to be filed by it or with respect to all or any portion of the Collateral.
(m) Each Seller shall advise Buyer in writing of the opening of any new chief executive office or the closing of any such office and of any change in such Seller’s name or organizational structure or the places where the books and records pertaining to the Purchased Loan are held not less than thirty (30) days prior to taking any such action. Each Seller shall also give Buyer prompt written notice of any transfer of more than 20% of the direct or indirect ownership interests in any Seller Party.
(n) Each Seller will maintain records with respect to the Collateral and the conduct and operation of its business with no less a degree of prudence than if the Collateral were held by such Seller for its own account and will furnish Buyer, upon reasonable request by Buyer or its designated representative, with reasonable information reasonably obtainable by such Seller with respect to the Collateral and the conduct and operation of its business.
(o) Each Seller shall provide Buyer with reasonable access to any operating statements, any occupancy status and any other property level information, with respect to the Mortgaged Properties, plus any such additional reports as Buyer may reasonably request, in each case, to the extent same is in such Seller’s possession or reasonably obtainable by such Seller.
(p) Unless a Seller shall have given Buyer at least thirty (30) days’ prior written notice that such Seller intends to change the jurisdiction of its organization, (i) each LLC Seller agrees thatshall maintain its existence as a limited liability company organized solely and in good standing under the law of the State of Delaware and (ii) each Trust Seller shall maintain its existence as a statutory trust organized solely and in good standing under the law of the State of Delaware, and, in each case, shall not dissolve, liquidate, merge with or into any other Person or otherwise change its organizational structure or documents or incorporate or organize in any other jurisdiction, without the prior written approval of Buyer, which approval shall not be unreasonably withheld, conditioned or delayed.
(q) Each Seller shall promptly provide Buyer with notice of any Other Financing Agreements entered into by SAMC or any of its subsidiaries. Upon request of Buyer, the applicable Seller shall provide Buyer with copies (on a no-name basis) of the relevant provisions of such Other Financing Agreements (including any Other Financing Agreements entered into as of the date hereof) in order to comply with the provisions of Section 4(b) of this Agreement and Section 8(k) of the Guaranty.
(r) Unless not required to deliver a Beneficial Ownership Certificate because it is an excluded “Legal Entity Customer” under and as defined in the Beneficial Ownership Regulation, each Seller shall provide to Buyer: (i) a new Beneficial Ownership Certificate, in form and substance reasonably acceptable to Buyer, when the individual(s) identified therein as beneficial owners have changed; and (ii) such other information and documentation as may reasonably be requested by Buyer from time to time upon the prior written request of Xxxxx, it shall (A) execute and deliver such further documents, provide such additional information and reports and perform such other acts as Buyer may reasonably request in order to insure compliance with all Prescribed Laws and to fully effectuate the for purposes of this Agreement andcompliance by Buyer with applicable laws and any policy or procedure implemented by the Buyer to comply therewith. As soon as practicable, and in any event within five (5) days after a responsible officer of a Seller obtains knowledge thereof, such Seller shall provide to Buyer written notice of any change in the information provided in such Seller’s most recently furnished Beneficial Ownership Certificate that would result in a change to the list of beneficial owners identified therein.
Appears in 1 contract
Affirmative Covenants of Seller. On and as of the date of this Agreement and each Purchase Date and at all times while this Agreement and any Transaction thereunder is in effect or any Repurchase Obligations remain outstanding:
(a) Seller shall promptly notify Buyer upon notice or knowledge of any event and/or condition that could reasonably be expected is likely to have a Material Adverse Effect.
(b) Seller shall give notice to Buyer of the following (accompanied by an Officer’s Certificate setting forth details of the occurrence referred to therein and stating what actions Seller has taken or proposes to take with respect thereto):
(i) promptly upon receipt by Seller of notice or knowledge of the occurrence of any monetary or material non-monetary Default or Event of Default;
(ii) with respect to any Purchased Asset sold to Buyer hereunder, promptly following receipt of any unscheduled Principal Payment (in full or in part);
(iii) with respect to any Purchased Asset sold to Buyer hereunder, promptly following receipt by Seller of notice or knowledge that the related Mortgaged Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as to affect adversely the value of such Mortgaged Property;
(iv) promptly upon receipt of notice by Seller or knowledge of (A) any Purchased Asset that becomes a Defaulted Asset, (B) any lien or security interest (other than security interests created hereby) on, or claim asserted against, any Purchased Asset or, to Seller’s knowledge, the underlying collateral therefor, (C) any event or change in circumstances that has or could reasonably be expected to have a material adverse effect on the Market Value of a Purchased Asset, or (D) any change with respect to Servicer or in the servicing of any Purchased Asset;
(v) promptly, and in any event within ten (10) days after service of process on any of the following, give to Buyer notice of all material litigation, actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings affecting Seller or affecting any of the assets of Seller before any Governmental Authority that (A) questions or challenges the validity or enforceability of any of the Transaction Documents or any action to be taken in connection with the transactions contemplated hereby, (B) makes a claim or claims in an aggregate amount greater than $250,000, (C) which, individually or in the aggregate, if adversely determined could reasonably expect be likely to have a Material Adverse Effect, (D) requires filing with the SEC in accordance with the 1934 Act and any rules thereunder or (E) raises any material lender licensee issues with respect to any Purchased Asset;
(vi) promptly upon any transfer of any underlying Mortgaged Property or any direct or indirect equity interest in any Mortgagor of which Seller has knowledge, whether or not consent to such transfer is required under the applicable Purchased Asset Documents; and
(vii) promptly, and in any event within ten (10) days after Seller or any of its ERISA Affiliates knows or has reason to know that any “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur in respect of a Plan that, individually or in the aggregate, either has resulted, or could reasonably be expected to result, in a Material Adverse Effect; and
(viii) promptly upon receipt by Seller of notice or knowledge of the occurrence of any breach of the representations and warranties in Exhibit III of this Agreement.
(c) Seller shall provide Buyer with copies of such documents (to the extent such documents are reasonably requested by Xxxxx and can be provided by Seller without undue burden) as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10 hereof, to the extent such documents are in Seller’s possession.
(d) Seller shall defend the right, title and interest of Xxxxx Buyer in and to the Purchased Assets and any Hedging Transactions against, and take such other action as is necessary to remove, any liens, security interests, claims, encumbrances, charges and demands of all Persons thereon (other than security interests granted to Buyer hereunder and Permitted Encumbranceshereunder), and and, upon Buyer’s reasonable request, take any such other action as is necessary to obtain or preserve a first priority perfected security interest in the Purchased Assets and any Hedging Transactions.
(e) Seller will permit Buyer or its designated representative to inspect any of Seller’s records with respect to all or any portion of the Purchased Assets and the conduct and operation of its business related thereto upon Buyer’s reasonable notice at such reasonable times and with reasonable frequency requested by Buyer or its designated representative upon Buyer’s reasonable notice to the Seller and to make copies of extracts of any and all thereof; provided, that, so long as no Event subject to terms of Default has occurred any confidentiality agreement between Buyer and is continuing, Seller. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection related to the costs conduct and expenses operation of such inspections payable by the Seller shall be limited to one (1) such inspection per calendar yearSeller’s business.
(f) If any amount payable under or in connection with any of the Purchased Assets shall be or become evidenced by any promissory note, other instrument or chattel paper (as each of the foregoing is defined under the UCC), such note, instrument or chattel paper shall be promptly immediately delivered to Buyer or its designee, duly endorsed in a manner satisfactory to Buyer or if any collateral or other security shall subsequently be delivered to Seller in connection with any Purchased Asset, Seller shall immediately deliver or forward such item of collateral or other security to Buyer or its designee, together with such instruments of assignment as Buyer may reasonably request.
(g) Seller shall provide (or cause to be provided) to Buyer the following financial and reporting information:
(i) the Monthly Statement;
(ii) within sixty (60) days following the end of each of the first three fiscal quarters, the unaudited Quarterly Report, together with all financial statements, operating statements, rent rolls statements and occupancy information that Seller or Servicer has received relating to the Purchased Assets for the related fiscal quarter; provided, further, that Seller shall use reasonable efforts to require all Mortgagors under the applicable Mortgage Loans to comply with the reporting requirements set forth in the applicable Purchased Asset Documents;
(iii) within one hundred and twenty (120) days after the end of each fiscal year of Guarantor (A) the audited balance sheets of Guarantor and its consolidated subsidiaries, and unaudited balance sheet of Pledgor and Seller, in each case as at the end of such fiscal year, (B) the related statements of income, retained earnings and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, (C) an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said financial statements fairly present the financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of and for such fiscal year in accordance with GAAP, (D) a certification from such accountants that, in making the examination necessary therefor, no information was obtained of any monetary or material non-monetary Default or Event of Default except as specified therein, and (E) projections of Guarantor and Seller of the operating budget and cash flow budget of Guarantor for the following fiscal year;
(iv) a Financial Covenant Compliance Certificate;
(viv) within sixty (60) days following the end of each of the first three quarters, and within one hundred and twenty (120) days following the end of each fiscal year, as the case may be, an Officer’s Certificate of Seller in form and substance reasonably satisfactory to Buyer certifying that during such fiscal quarter or year Seller has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, in each case, in all material respects (or in the event of any failure to so observe, perform or satisfy, the details of such failure), and that to the knowledge of the Seller (i) any Event of Default and any event or circumstance that has occurred that is reasonably likely to result in a Material Adverse Effect or (ii) there has occurred no Event of Default and no event or circumstance has occurred that is reasonably likely to result in a Material Adverse EffectIntentionally Omitted;
(vi) servicing data tapes for each of Purchased Asset, to be delivered in accordance with the applicable servicing agreement;
(viiv) within ten (10) Business Days after XxxxxBuyer’s request, such further information with respect to the operation of any Mortgaged Property, Purchased Asset, the financial affairs of Seller, Pledgor Seller or Guarantor and any Plan and Multiemployer Plan as may be reasonably requested by XxxxxBuyer, including all business plans prepared by or for Seller;
(viiivi) upon the request of Buyer no more often than annuallyBuyer, updated Appraisals of the Mortgaged Properties relating to the Purchased Assets, at BuyerSeller’s sole cost and expense; provided, however, as (x) so long as no Event of Default has occurred and is continuing, Buyer Seller shall not request an updated appraisal more than once only be responsible for up to $25,000 for such Appraisals in any 12 month periodone (1) calendar year and (y) after the occurrence and during the continuance of an Event of Default, Seller shall only be responsible for up to $100,000 for such Appraisals in any one (1) calendar year; and
(ixvii) such other reports as Buyer shall reasonably request (to the extent such requests do not unduly burden Seller)request.
(h) Seller shall at all times comply in all material respects with all laws (including, without limitation, Prescribed Laws), ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Seller or any of its assets, and Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence and all licenses material to its business.
(i) Seller agrees that, from time to time upon the prior written request of XxxxxBuyer, it shall (A) execute and deliver such further documents, provide such additional information and reports and perform such other acts as Buyer may reasonably request in order to insure compliance with all Prescribed Laws and to fully effectuate the purposes of this Agreement andand (B) provide such opinions of counsel concerning matters relating to the Prescribed Laws as Buyer may reasonably request; provided, however, that nothing in this Section 3(i) shall be construed as requiring Buyer to conduct any inquiry or decreasing Seller’s responsibility for its statements, representations, warranties or covenants under this Agreement. In order to enable Buyer and its respective Affiliates to comply with any anti-money laundering program and related responsibilities including, but not limited to, any obligations under the Prescribed Laws and regulations thereunder, Seller, on behalf of itself and its Affiliates, represents and covenants to Buyer and its Affiliates that: (A) neither Seller, nor, any of its Affiliates, is a Prohibited Person and (B) Seller is not acting on behalf of or on behalf of any Prohibited Person. Seller agrees to promptly notify Buyer or a person appointed by Buyer to administer its anti-money laundering program, if applicable, of any change in information affecting this Section 12(i).
(j) Seller shall at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions in accordance with GAAP.
(k) Seller shall advise Buyer in writing of the opening of any new chief executive office of Seller or the closing of any such office and of any change in Seller’s name or the places where the books and records pertaining to the Purchased Assets are held not less than fifteen (15) Business Days prior to taking any such action.
(l) Seller shall pay when due all Transaction Costs. Seller shall pay and discharge all Taxes, levies, liens and other charges, if any, on its assets and on the Purchased Assets that, in each case, in any manner would create any lien or charge upon the Purchased Assets, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided in accordance with GAAP.
(m) Seller shall maintain its existence as a limited liability company organized solely and in good standing under the law of the State of Delaware and shall not dissolve, liquidate, merge with or into any other Person or otherwise change its organizational structure or documents or identity or incorporate or organize in any other jurisdiction.
(n) Seller shall maintain all records with respect to the Purchased Assets and the conduct and operation of its business with no less a degree of prudence than if the Purchased Assets were held by Seller for its own account and will furnish Buyer, upon request by Buyer or its designated representative, with information reasonably obtainable by Seller with respect to the Purchased Assets and the conduct and operation of its business.
(o) Seller shall provide Buyer with notice of each modification of any Purchased Asset Documents consented to by Seller (including such modifications which do not constitute a Significant Modification).
(p) Seller shall provide Buyer with reasonable access to operating statements, the occupancy status and other property level information, with respect to the Mortgaged Properties, plus any such additional reports as Buyer may reasonably request.
(q) Seller may propose, and Buyer will consider, but shall be under no obligation to approve, strategies for the foreclosure or other realization upon the security for any Purchased Asset that has become a Defaulted Asset.
(r) Seller shall not cause any Purchased Asset to be serviced by any servicer other than a servicer expressly approved in writing by Buyer. Seller shall provide written notification to Buyer within one (1) Business Day of any rating agency reducing the credit or servicer rating applicable to any servicer.
(s) If Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for a Purchased Asset, or otherwise in respect thereof, Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer (or Custodian, as appropriate) in the exact form received, duly endorsed by Seller to Buyer if required, together with all related and necessary duly executed Transfer Documents to be held by Buyer hereunder as additional collateral security for the Transactions. If any sums of money or property so paid or distributed in respect of the Purchased Assets shall be received by Seller, Seller shall, until such money or property is paid or delivered to Buyer, hold such money or property in trust for Buyer, segregated from other funds of Seller, as additional collateral security for the Transactions.
(t) If Guarantor or any Subsidiary of Guarantor has entered into or shall enter into or amend a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants tested at the Guarantor level, including without limitation covenants covering the same or similar subject matter set forth in any Financial Covenant Compliance Certificate required to be delivered hereunder (a “More Favorable Agreement”), Seller shall (i) give notice to Buyer of such more favorable terms (A) in the case of an existing More Favorable Agreement, promptly, and (B) in the case of a More Favorable Agreement that has not been executed, not less than ten (10) Business Days’ prior to execution of such More Favorable Agreement, and (ii) enter into such amendments to this Agreement and the other Transaction Documents as may be required by Buyer to give effect to such more favorable terms (A) in the case of an existing More Favorable Agreement, no later than ten (10) Business Days after notice is given pursuant to clause (i)(A) above, or (B) in the case of a More Favorable Agreement that has not been executed, the date on which such more favorable terms become effective.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Granite Point Mortgage Trust Inc.)
Affirmative Covenants of Seller. On and as of (a) From the date of Seller's acceptance hereof to the Closing Date or earlier termination of this Agreement Agreement, Seller shall operate and each Purchase Date manage the Property in the same manner as it has been operated and at all times while this Agreement managed heretofore, provided that, from and after the end of the Due Diligence Period, without the prior written consent of Purchaser, which consent Purchaser may give or deny in its sole and absolute discretion, Seller shall not do, suffer or permit, or agree to do, any Transaction thereunder is in effect or any Repurchase Obligations remain outstandingof the following:
(ai) Seller enter into any transaction in respect to or affecting the Property out of the ordinary course of business, but this provision shall promptly notify Buyer upon notice not affect Seller's right to mortgage, or knowledge refinance or restructure any financing on, the Property;
(ii) sell, encumber or grant any interest in the Property or any part thereof in any form or manner whatsoever, or otherwise perform or permit any act which will diminish or otherwise affect Purchaser's interest under this Agreement or in or to the Property or which will prevent Seller's full performance of its obligations hereunder;
(iii) enter into, amend, waive any event and/or condition that could reasonably be expected rights under, terminate or extend any Assigned Contract or License without Purchaser's consent;
(iv) remove from the Property any of the fixtures thereon or any of the Tangible Personal Property, other than the Tenant Equipment;
(v) make or permit any alterations to have a Material Adverse Effectthe Property, other than "Alterations" made in accordance with the Lease if the same were then in effect; or
(vi) reduce the level of maintenance to the Property.
(b) To the extent within Seller's possession or, if known to Seller and reasonably within Seller's control and, in either case, not heretofore delivered to Seller or its advisors, Seller shall give notice deliver to Buyer Purchaser not later than ten (10) business days following Purchaser's receipt from Seller of a fully executed original of this Agreement true, correct and complete copies of the following (accompanied by an Officer’s Certificate setting forth details of following, if and to the occurrence referred to therein and stating what actions Seller has taken or proposes to take with respect thereto):extent reasonably available:
(i) promptly upon receipt by Seller all Assigned Contracts and Licenses, together with all amendments and modifications of notice or knowledge any of the occurrence of any monetary or material non-monetary Default or Event of Defaultforegoing;
(ii) with respect to any Purchased Asset sold to Buyer hereunder, promptly following receipt of any unscheduled Principal Payment (in full or in part)insurance bills for 2002;
(iii) with respect the real estate tax statement pertaining to any Purchased Asset sold to Buyer hereunder, promptly following receipt by Seller of notice or knowledge that the related Mortgaged Real Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as to affect adversely the value of such Mortgaged Propertyfor taxes payable in 2002;
(iv) promptly upon receipt of notice by Seller or knowledge of (A) any Purchased Asset that becomes a Defaulted Assetplans and specifications, (B) any lien or security interest (other than security interests created hereby) onif any, or claim asserted againstfor the Improvements, any Purchased Asset or, to Seller’s knowledge, including the underlying collateral therefor, (C) any event or change in circumstances that has or could reasonably be expected to have a material adverse effect on the Market Value of a Purchased Asset, or (D) any change with respect to Servicer or in the servicing of any Purchased Asset"as built" plans and specifications for all existing renovations thereto;
(v) promptlyall appraisal, engineering, soils, hazardous materials and architectural maps, plans, reports, studies, drawings, and in any event within ten (10) days after service of process on any of the following, give to Buyer notice of all material litigation, actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending specifications prepared for or threatened) or other legal or arbitrable proceedings affecting Seller or affecting any of the assets of Seller before any Governmental Authority that (A) questions or challenges the validity or enforceability of any of the Transaction Documents or any action to be taken in connection with the transactions contemplated hereby, Real Property within the last five (B5) makes a claim or claims in an aggregate amount greater than $250,000, (C) which, individually or in the aggregate, if adversely determined could reasonably expect to have a Material Adverse Effect, (D) requires filing with the SEC in accordance with the 1934 Act and any rules thereunder or (E) raises any material lender licensee issues with respect to any Purchased Assetyears;
(vi) promptly upon any transfer of any underlying Mortgaged evidence, if such is the case, that the Real Property or any direct or indirect equity interest in any Mortgagor of which Seller has knowledge, whether or not consent to such transfer is required under the complies with existing applicable Purchased Asset Documents; andzoning ordinances. Letters stating compliance from local governmental authorities shall constitute satisfactory evidence;
(vii) promptlycurrent ALTA surveys of the Real Property if already available;
(viii) Phase I environmental reports for the Property if already available. No representation or warranty, and in express or implied, of any event within ten (10) days after kind is made by Seller or any of its ERISA Affiliates knows or has reason to know that any “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur in respect of a Plan thatany of the deliveries heretofore or hereafter made pursuant to this Section 7.1(b). Purchaser covenants with and represents and warrants to Seller that Purchaser, individually the Inspection Parties, and its agents will strictly retain the confidentiality of the information set forth in or provided pursuant to this Agreement or obtained in connection with any inspection under Section 8.1 and will not disclose the aggregatesame to any third party, either has resultedexcept that Purchaser may disclose the same to its legal counsel and other experts under instructions to retain the confidentiality of such information on the same basis as set forth herein as to Purchaser. The provisions of this paragraph shall survive the termination of this Agreement, or could reasonably be expected to result, in a Material Adverse Effectbut not the Closing.
(c) From the date of Seller's acceptance hereof to the Closing Date, Purchaser may order an environmental report to be conducted by an environmental engineering firm selected by Purchaser (the "Environmental Study"). Purchaser shall pay all costs of the Environmental Study. Seller shall provide Buyer cooperate with copies of such documents (to Purchaser and its agents in arranging the extent such documents are reasonably requested by Xxxxx and can be provided by Seller without undue burden) as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10 hereofEnvironmental Study.
(d) Seller shall defend the right, title and interest of Xxxxx in and to the Purchased Assets and any Hedging Transactions against, and take such other action as is necessary to remove, any liens, security interests, claims, encumbrances, charges and demands of all Persons thereon (other than security interests granted to Buyer hereunder and Permitted Encumbrances), and take any such other action as is necessary to obtain or preserve a first priority perfected security interest in the Purchased Assets and any Hedging Transactions.
(e) Seller will permit Buyer or its designated representative to inspect any of Seller’s records with respect to all or any portion of the Purchased Assets and the conduct and operation of its business related thereto at such reasonable times and with reasonable frequency requested by Buyer or its designated representative upon Buyer’s reasonable notice to the Seller and to make copies of extracts of any and all thereof; provided, that, so long as no Event of Default has occurred and is continuing, the costs and expenses of such inspections payable by the Seller shall be limited to one (1) such inspection per calendar year.
(f) If any amount payable under or in connection with any of the Purchased Assets shall be or become evidenced by any promissory note, other instrument or chattel paper (as each of the foregoing is defined under the UCC), such note, instrument or chattel paper shall be promptly delivered to Buyer or its designee, duly endorsed in a manner satisfactory to Buyer or if any collateral or other security shall subsequently be delivered to Seller in connection with any Purchased Asset, Seller shall immediately deliver or forward such item of collateral or other security to Buyer or its designee, together with such instruments of assignment as Buyer may reasonably request.
(g) Seller shall provide (or cause to be provided) to Buyer the following financial and reporting informationshall:
(i) the Monthly Statement;
(ii) within sixty (60) days following the end of each of the first three fiscal quarters, the unaudited Quarterly Report, together with all financial statements, operating statements, rent rolls and occupancy information that Seller or Servicer has received relating to the Purchased Assets for the related fiscal quarter; provided, further, that Seller shall use reasonable efforts to require all Mortgagors under the applicable Mortgage Loans to comply with the reporting requirements set forth in the applicable Purchased Asset Documents;
(iii) within one hundred and twenty (120) days after the end of each fiscal year of Guarantor (A) the audited balance sheets of Guarantor and its consolidated subsidiaries, and unaudited balance sheet of Pledgor and Seller, in each case as at the end of such fiscal year, (B) the related statements of income, retained earnings and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, (C) an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said financial statements fairly present the financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of and for such fiscal year in accordance with GAAP, (D) a certification from such accountants that, in making the examination necessary therefor, no information was obtained of any monetary or material non-monetary Default or Event of Default except as specified therein, and (E) projections of Guarantor and Seller of the operating budget and cash flow budget of Guarantor for the following fiscal year;
(iv) a Financial Covenant Compliance Certificate;
(v) within sixty (60) days following the end of each of the first three quarters, and within one hundred and twenty (120) days following the end of each fiscal year, as the case may be, an Officer’s Certificate of Seller in form and substance reasonably satisfactory to Buyer certifying that during such fiscal quarter or year Seller has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, in each case, in all material respects (or in the event of any failure to so observe, perform or satisfy, the details of such failure), and that to the knowledge of the Seller (i) any Event of Default and any event or circumstance that has occurred that is reasonably likely to result in a Material Adverse Effect or (ii) there has occurred no Event of Default and no event or circumstance has occurred that is reasonably likely to result in a Material Adverse Effect;
(vi) servicing data tapes for each of Purchased Asset, to be delivered in accordance with the applicable servicing agreement;
(vii) within ten (10) Business Days after Xxxxx’s request, such further information with respect to the operation of any Mortgaged Property, Purchased Asset, the financial affairs of Seller, Pledgor or Guarantor and any Plan as may be reasonably requested by Xxxxx, including all business plans prepared by or for Seller
(viii) upon the request of Buyer no more often than annually, updated Appraisals of the Mortgaged Properties relating to the Purchased Assets, at Buyer’s sole cost and expense; provided, however, as long as no Event of Default has occurred and is continuing, Buyer shall not request an updated appraisal more than once in any 12 month period; and
(ix) such other reports as Buyer shall reasonably request (to the extent such requests do not unduly burden Seller).
(h) Seller shall at all times comply in all material respects with all laws (including, without limitation, Prescribed Laws), ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Seller or any of its assets, and Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence and all licenses material to its business.
(i) Seller agrees that, from time to time upon the prior written request of Xxxxx, it shall (A) execute and deliver such further documents, provide such additional information and reports and perform such other acts as Buyer may reasonably request in order to insure compliance with all Prescribed Laws and to fully effectuate the purposes of this Agreement and
Appears in 1 contract
Samples: Agreement to Purchase Office/Warehouse Building (Wilsons the Leather Experts Inc)
Affirmative Covenants of Seller. On and as of the date of this Agreement and each Purchase Date and at all times while this Agreement and any Transaction thereunder is in effect or any Repurchase Obligations remain outstanding:
(a) Seller shall promptly notify Buyer upon notice or knowledge of any event and/or condition that could reasonably be expected is likely to have a Material Adverse EffectEffect of which Seller has Knowledge.
(b) Seller shall give notice to Buyer of the following (accompanied by an Officer’s Certificate setting forth details of the occurrence referred to therein and stating what actions Seller has taken or proposes to take with respect thereto):
(i) promptly upon receipt by Seller of notice or knowledge Knowledge of the occurrence of any monetary or material non-monetary Default, Event of Default or Event of DefaultCross-Termination Event;
(ii) with respect to any Purchased Asset Loan sold to Buyer hereunder, promptly following receipt of any unscheduled Principal Payment (in full or in part);
(iii) with respect to any Purchased Asset Loan sold to Buyer hereunder, promptly following receipt by Seller of notice or knowledge Knowledge that the related Mortgaged Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as to affect adversely the value of such Mortgaged Property;
(iv) promptly upon following receipt of notice by Seller or knowledge Knowledge of (A1) any Purchased Asset Loan that becomes a Defaulted AssetLoan, (B2) any lien or security interest (other than security interests created hereby) on, or claim asserted against, any Purchased Asset Loan or, to Seller’s knowledgeKnowledge, the underlying collateral therefor, therefor or (C3) any event or change in circumstances that has or could reasonably be expected to have a material an adverse effect affect on the Market Value of a Purchased Asset, or (D) any change with respect to Servicer or in the servicing of any Purchased AssetLoan;
(v) promptly, and in any event within ten (10) days Business Days after service of process on any of the following, give to Buyer notice of all material litigation, actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings affecting Seller or affecting any of the assets of Seller before any Governmental Authority that (A1) questions or challenges the validity or enforceability of any of the Transaction Documents or any action to be taken in connection with the transactions contemplated hereby, (B2) makes a claim or claims in an aggregate amount greater than $250,0001,000,000, or (C3) which, individually or in the aggregate, if adversely determined could reasonably expect be likely to have a Material Adverse Effect, (D) requires filing with the SEC in accordance with the 1934 Act and any rules thereunder or (E) raises any material lender licensee issues with respect to any Purchased Asset;
(vi) promptly upon Seller obtaining Knowledge of any change in Guarantor’s status as a REIT; and
(vii) promptly upon any transfer of any underlying Mortgaged Property or any direct or indirect equity interest in any Mortgagor of which the Seller has knowledgeKnowledge, whether or not consent to such transfer is required under the applicable Purchased Asset Loan Documents; and
(vii) promptly, and in any event within ten (10) days after Seller or any of its ERISA Affiliates knows or has reason to know that any “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur in respect of a Plan that, individually or in the aggregate, either has resulted, or could reasonably be expected to result, in a Material Adverse Effect.
(c) Seller shall provide Buyer with copies of such documents (to the extent such documents are reasonably requested by Xxxxx and can be provided by Seller without undue burden) as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10 hereof10, to the extent such documentation is available to Seller.
(d) Seller shall defend the right, title and interest of Xxxxx Buyer in and to the Purchased Assets and any Hedging Transactions Loans against, and take such other action as is necessary to remove, any the liens, security interests, claims, encumbrances, charges and demands of all Persons thereon against the Purchased Loans (other than security interests granted to Buyer hereunder and other than Permitted Encumbrances), and take any such other action as is necessary to obtain or preserve a first priority perfected security interest in the Purchased Assets and any Hedging Transactions.
(e) Seller will permit Buyer or its designated representative to inspect any of Seller’s records with respect to all or any portion of the Purchased Assets Loans and the conduct and operation of its business related thereto at such reasonable times and with reasonable frequency requested by Buyer or its designated representative upon Buyer’s reasonable notice to the Seller and to make copies of extracts of any and all thereof; provided, that, so long as no Event of Default has occurred and is continuing, the costs and expenses of such inspections payable by the Seller shall be limited to one (1) such inspection per calendar year.
(f) If any amount payable under or in connection with any of the Purchased Assets Loans shall be or become evidenced by any promissory note, other instrument or chattel paper (as each of the foregoing is defined under the UCC), such note, instrument or chattel paper shall be promptly delivered to Buyer or its designee, duly endorsed in a manner satisfactory to Buyer or if any collateral or other security shall subsequently be delivered to Seller in connection with any Purchased AssetLoan, Seller shall immediately promptly deliver or forward such item of collateral or other security to Buyer or its designee, together with such instruments of assignment as Buyer may reasonably request.
(g) Seller shall provide (or cause to be provided) to Buyer the following financial and reporting information:
(i) the Monthly Statement;
(ii) within sixty (60) days following the end of each of the first three fiscal quarters, the unaudited Quarterly Report, together with all financial statements, operating statements, rent rolls statements and occupancy information that Seller or Servicer has received relating to the Purchased Assets Loans for the related fiscal quarter; provided, further, that Seller shall use reasonable efforts to require all Mortgagors under the applicable Mortgage Loans to comply with the reporting requirements set forth in the applicable Purchased Asset Documents;
(iii) the Financial Covenant Compliance Certificate;
(iv) as soon as available and in any event within one hundred and twenty forty-five (12045) days after the end of each of the first three quarterly fiscal periods of each fiscal year of Guarantor (A) Guarantor, the audited unaudited, consolidated balance sheets of Guarantor and its consolidated subsidiariesGuarantor, and unaudited balance sheet of Pledgor and Seller, in each case as at the end of such fiscal year, (B) period and the related unaudited, consolidated statements of income, income and retained earnings and of cash flows for Guarantor for such year, setting forth period and the portion of the fiscal year through the end of such period (and in each case with comparisons to applicable information in comparative form the figures for financials statements from the previous year), (C) accompanied by an opinion thereon Officer’s Certificate of independent certified public accountants of recognized national standingGuarantor, which opinion shall not be qualified as to scope of audit or going concern and certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of and for such fiscal year in accordance with GAAP, (D) a certification from such accountants thatconsistently applied, in making as at the examination necessary therefor, no information was obtained of any monetary or material non-monetary Default or Event of Default except as specified thereinend of, and for, such period (E) projections of Guarantor and Seller of the operating budget and cash flow budget of Guarantor for the following fiscal subject to normal year;
(iv) a Financial Covenant Compliance Certificate-end audit adjustments);
(v) within sixty forty-five (6045) days following the end of each of the first three quartersfiscal quarter, and or within one hundred and twenty ninety (12090) days following the end of each fiscal year, as the case may be, an Officer’s Certificate of Seller in form and substance reasonably satisfactory to Buyer certifying that during such fiscal quarter or year Seller has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, in each case, in all material respects (or in the event of any failure to so observe, perform or satisfy, the details of such failure), and that to the knowledge of the Seller (i) any Event of Default and any event or circumstance that has occurred that is reasonably likely to result in a Material Adverse Effect or (ii) there has occurred no Event of Default and which remains uncured and, to Seller’s Knowledge, no event or circumstance has occurred that is reasonably likely to result in a Material Adverse EffectEffect under this Agreement;
(vi) servicing data tapes as soon as available and in any event within ninety (90) days after the end of each fiscal year of Guarantor, the consolidated balance sheets of Guarantor as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows for each Guarantor for such year, accompanied by an opinion thereon of Purchased Assetindependent certified public accountants of recognized national standing, which opinion shall not be qualified as to be delivered scope of audit or going concern and shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor as at the end of, and for, such fiscal year in accordance with the applicable servicing agreementGAAP;
(vii) within ten (10) Business Days after XxxxxBuyer’s request, such further information with respect to the operation of any Mortgaged Property, Purchased AssetLoan, the financial affairs of Seller, Pledgor Seller or Guarantor and any Plan and Multiemployer Plan in Seller’s or Guarantor’s possession as may be reasonably requested by XxxxxBuyer, including all business plans prepared by or for Seller
(viii) upon the request of Buyer no more often than annually, updated Appraisals of the Mortgaged Properties relating to the Purchased Assets, at Buyer’s sole cost and expense; provided, however, that with respect to information not previously Known to, or in the possession of, Guarantor relating to any Multiemployer Plan, Guarantor shall be required to provide only such information as long as no Event of Default has occurred and is continuing, Buyer shall not request an updated appraisal more than once in any 12 month periodmay be obtained through its good faith efforts; and
(ixviii) within ten (10) Business Days after Buyer’s request, such other reports further information in Guarantor’s possession as Buyer shall may be reasonably request (to the extent such requests do not unduly burden Seller)requested by Buyer.
(h) Seller shall at all times comply in all material respects with all laws (including, without limitation, Prescribed Laws)laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Seller or any of its assets, and Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence and all licenses material to its business.
(i) Seller agrees shall at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions in accordance with GAAP and set aside on its books from its earnings for each fiscal year all such proper reserves in accordance with GAAP.
(j) Seller shall advise Buyer in writing of the opening of any new chief executive office of Seller or the closing of any such office and of any change in Seller’s name or the places where the books and records pertaining to the Purchased Loans are held not less than the later of fifteen (15) Business Days prior to taking any such action or thirty (30) days before any financing statement filing will lapse, lose perfection or become materially misleading of which Seller has Knowledge.
(k) Seller shall observe, perform and satisfy all the terms, provisions, covenants and conditions required to be observed, performed or satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the Transaction Documents. Seller shall pay and discharge all taxes, levies, liens and other charges, if any, on its assets and on the Purchased Loans that, from time in each case, in any manner would create any lien or charge upon the Purchased Loans, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to time upon which adequate reserves have been provided in accordance with GAAP.
(l) Seller shall maintain its existence as a limited partnership or a limited liability company, as applicable, organized solely and in good standing under the law of the State of Delaware (unless Seller shall have given Buyer at least fifteen (15) Business Days’ prior written notice that Seller intends to change the jurisdiction of its organization) and shall not dissolve, liquidate, merge with or into any other Person or otherwise change its organizational structure or documents in any material respect or incorporate or organize in any other jurisdiction, without the prior written approval of Buyer, which approval shall not be unreasonably withheld, conditioned or delayed.
(m) Seller shall maintain all records with respect to the Purchased Loans and the conduct and operation of its business with no less a degree of prudence than if the Purchased Loans were held by Seller for its own account and will furnish Buyer, upon request by Buyer or its designated representative, with information reasonably obtainable by Seller with respect to the Purchased Loans and the conduct and operation of Xxxxxits business.
(n) Seller shall provide Buyer with notice of each modification of any Purchased Loan Documents consented to by Seller (including such modifications which do not constitute a Significant Modification).
(o) Seller shall provide Buyer with reasonable access to operating statements, it shall (A) execute the occupancy status and deliver such further documentsother property level information, provide with respect to the Mortgaged Properties, plus any such additional information and reports and perform such other acts in Seller’s possession as Buyer may reasonably request request.
(p) Seller may propose, and Buyer will consider, but shall be under no obligation to approve, strategies for the foreclosure or other realization upon the security for any Purchased Loan that has become a Defaulted Loan.
(q) Seller shall not cause any Purchased Loan to be serviced by any servicer other than a servicer expressly approved in order writing by Buyer.
(r) If Seller has entered into or shall enter into or amend a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to insure compliance with all Prescribed Laws any financial covenants, including without limitation covenants covering the same or similar subject matter set forth in the Financial Covenant Compliance Certificates required to be delivered hereunder, then Seller shall deliver written notice to Buyer of such more favorable terms and, upon Buyer’s request, Buyer and Seller shall enter into an amendment to fully effectuate the purposes of this Agreement andin form and substance reasonably acceptable to each of the parties, which amendment shall incorporate such more favorable terms.
Appears in 1 contract
Samples: Master Repurchase Agreement (Starwood Property Trust, Inc.)
Affirmative Covenants of Seller. On and as of During the date term of this Agreement and each Purchase Date and at all times while this Agreement and so long as any Transaction thereunder is in effect or any Repurchase Obligations remain outstandinghereunder:
(a) Each Seller shall promptly notify Buyer upon notice or knowledge of any event and/or condition that could reasonably be expected to have a Material Adverse Effect; provided, however, that nothing in this Section 11 shall relieve any Seller of its obligations under this Agreement.
(b) Each Seller shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 9.
(c) Each Seller (i) shall defend the right, title and interest of Buyer in and to the Collateral against, and take such other action as is necessary to remove, the liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (ii) shall, at Buyer’s reasonable request, take all action necessary to ensure that Buyer will have a first priority security interest in the Purchased Loans subject to any of the Transactions in the event such Transactions are recharacterized as secured financings.
(d) Each Seller shall notify Buyer and the Depository of the occurrence of any Default or Event of Default as soon as possible but in no event later than the second (2nd) Business Day after obtaining actual knowledge of such event.
(e) Each Seller shall give notice to Buyer of the following (except in the case of clause (i) below, accompanied by an Officerofficer’s Certificate certificate setting forth details of the occurrence referred to therein and stating what actions such Seller has taken or proposes to take with respect thereto):
(i) promptly upon receipt by Seller of notice or knowledge of the occurrence of any monetary or material non-monetary Default or Event of Default;
(ii) with respect to any Purchased Asset sold Loan subject to Buyer a Transaction hereunder, promptly (and in any event within two (2) Business Days) following receipt of any unscheduled Principal Payment (in full or in part);
(iiiii) with respect to any Purchased Asset Loan sold to Buyer hereunder, promptly (and in any event within two (2) Business Days) following receipt by such Seller of notice or knowledge that the any related Mortgaged Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as as, in each case, to materially and adversely affect adversely the value of such Mortgaged Property;
(iviii) promptly upon (and in any event within two (2) Business Days) following receipt of notice by such Seller or knowledge of (Ai) the occurrence of any payment default or other material default under the Loan Documents for any Purchased Asset that becomes a Defaulted AssetLoan, (Bii) any lien or security interest (other than security interests created hereby) on, or claim asserted against, any Purchased Asset Loan or, to the best knowledge of such Seller’s knowledge, the underlying collateral therefor, therefor or (Ciii) any event or change in circumstances that has or could reasonably be expected to have a material and adverse effect on the Market Value of a Purchased Asset, or (D) any change with respect to Servicer or in the servicing of any Purchased Asset;Loan; and
(viv) promptly, and in any event within ten three (103) days Business Days after service of process on any of the following, give to Buyer notice of all material litigation, actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings directly affecting such Seller or directly affecting any of the assets of such Seller before any Governmental Authority that (Ai) questions or challenges the validity or enforceability of any of the Transaction Documents or any action to be taken in connection with the transactions contemplated hereby, (Bii) makes a claim or claims in an aggregate amount greater than $250,0001,000,000, or (Ciii) which, individually or in the aggregate, if adversely determined could reasonably expect be likely to have a Material Adverse Effect, (D) requires filing with the SEC in accordance with the 1934 Act and any rules thereunder or (E) raises any material lender licensee issues with respect to any Purchased Asset;
(vi) promptly upon any transfer of any underlying Mortgaged Property or any direct or indirect equity interest in any Mortgagor of which Seller has knowledge, whether or not consent to such transfer is required under the applicable Purchased Asset Documents; and
(vii) promptly, and in any event within ten (10) days after Seller or any of its ERISA Affiliates knows or has reason to know that any “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur in respect of a Plan that, individually or in the aggregate, either has resulted, or could reasonably be expected to result, in a Material Adverse Effect.
(cf) Each Seller shall provide deliver to Buyer (i) notice of the occurrence of any Loan Event of Default promptly (and in any event not later than two (2) Business Days) after the earlier of the date that such Seller receives notice or has actual knowledge thereof and (ii) any other information with copies of such documents (respect to the extent such documents are any Purchased Loan as may be reasonably requested by Xxxxx and can be provided by Seller without undue burden) as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10 hereoffrom time to time.
(dg) Seller shall defend the right, title and interest of Xxxxx in and to the Purchased Assets and any Hedging Transactions against, and take such other action as is necessary to remove, any liens, security interests, claims, encumbrances, charges and demands of all Persons thereon (other than security interests granted to Buyer hereunder and Permitted Encumbrances), and take any such other action as is necessary to obtain or preserve a first priority perfected security interest in the Purchased Assets and any Hedging Transactions.
(e) Each Seller will permit Buyer or its designated representative to inspect any of such Seller’s records with respect to all or any portion of the Purchased Assets Collateral and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency requested by Buyer (but not more than once in any calendar year so long as no Event of Default or its designated representative upon Buyer’s reasonable notice to the Seller Diligence Event exists), and to make copies of extracts of any and all thereof; provided, that, so long as no Event subject to the terms of Default has occurred any confidentiality agreement between Buyer and is continuing, the costs and expenses of such inspections payable by the Seller shall be limited to one (1) such inspection per calendar yearapplicable Seller.
(fh) At any time from time to time upon the reasonable request of Buyer, at the sole expense of the applicable Seller, each Seller will promptly and duly execute and deliver to Buyer such further instruments and documents and take such further actions as Buyer may reasonably request for the purposes of obtaining or preserving the full benefits of this Agreement including the security interests granted hereunder and of the rights and powers herein granted (including, among other things, filing such UCC financing statements as Buyer may reasonably request). If any amount payable under or in connection with any of the Purchased Assets Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper (as each of the foregoing is defined under the UCC)paper, such note, instrument or chattel paper shall be promptly immediately delivered to Buyer or its designeeBuyer, duly endorsed in a manner reasonably satisfactory to Buyer or if any collateral or other security shall subsequently Buyer, to be held as Collateral pursuant to this Agreement, and the documents delivered to Seller in connection with any Purchased Asset, Seller shall immediately deliver or forward such item of collateral or other security to Buyer or its designee, together with such instruments of assignment as Buyer may reasonably requestherewith.
(gi) Each Seller shall provide (or cause to be provided) to Buyer with the following financial and reporting information:information (which shall be provided by email to each of the parties listed as “Buyer Reporting Parties” on Annex I attached hereto):
(i) Within 45 days after the Monthly Statement;
(ii) within sixty (60) days following the end last day of each of the first three fiscal quartersquarters in any fiscal year, Guarantor’s consolidated and unaudited and such Seller’s unaudited statements of income and statements of changes in cash flow for such quarter and balance sheets as of the unaudited Quarterly Reportend of such quarter, together in each case presented fairly in accordance with GAAP and certified as being true and correct by an officer’s certificate;
(ii) Within 90 days after the last day of its fiscal year, Guarantor’s consolidated and audited, and such Seller’s unaudited, statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year, in each case presented fairly in accordance with GAAP, and accompanied, in all financial statementscases, operating statements, rent rolls and occupancy information that Seller or Servicer has received relating by an unqualified report of a nationally recognized independent certified public accounting firm reasonably acceptable to the Purchased Assets for the related fiscal quarter; provided, further, that Seller shall use reasonable efforts to require all Mortgagors under the applicable Mortgage Loans to comply with the reporting requirements set forth in the applicable Purchased Asset DocumentsBuyer;
(iii) If not provided by the Servicer, within one hundred and twenty (120) 30 days after the end last day of each calendar month, any and all property level financial information (including without limitation rent rolls and operating statements) received with respect to the Purchased Loans by such Seller or an Affiliate during such calendar month;
(iv) Within 45 days after the last day of each of the first, second and third quarters and within 60 days after the last day of the fourth quarter in any fiscal year year, an officer’s certificate from such Seller addressed to Buyer certifying that, as of Guarantor (A) the audited balance sheets of Guarantor and its consolidated subsidiaries, and unaudited balance sheet of Pledgor and Seller, in each case as at the end of such fiscal yearquarter, (Bx) such Seller is in compliance with all of the related statements terms, conditions and requirements of income, retained earnings and cash flows for such year, setting forth in each case in comparative form the figures for the previous yearthis Agreement, (Cy) an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said financial statements fairly present the financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of and for such fiscal year in accordance with GAAP, (D) a certification from such accountants that, in making the examination necessary therefor, no information was obtained of any monetary or material non-monetary Default or Event of Default except as specified therein, exists and (Ez) projections of Guarantor and Seller is in compliance with the financial covenants set forth in Section 8 of the operating budget and cash flow budget Guaranty (including a calculation of Guarantor for the following fiscal year;
(iv) a Financial Covenant Compliance Certificate;each such financial covenant); and
(v) within sixty The Sellers shall cause the Servicer, no later than the fourth Business Day preceding each Payment Date (60) days following the end of each of the first three quarters, and within one hundred and twenty (120) days following the end of each fiscal year, as the case may be, an Officer’s Certificate of Seller in form and substance reasonably satisfactory to Buyer certifying that during such fiscal quarter or year Seller has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, in each case, in all material respects (or defined in the event of any failure to so observe, perform or satisfy, the details of such failureServicing Agreement), and that to provide reports substantially in the knowledge of the Seller (i) any Event of Default and any event or circumstance that has occurred that is reasonably likely to result in a Material Adverse Effect or (ii) there has occurred no Event of Default and no event or circumstance has occurred that is reasonably likely to result in a Material Adverse Effect;
(vi) servicing data tapes for each of Purchased Asset, to be delivered in accordance with the applicable servicing agreement;
(vii) within ten (10) Business Days after Xxxxx’s request, such further information with respect to the operation of any Mortgaged Property, Purchased Asset, the financial affairs of Seller, Pledgor or Guarantor and any Plan form attached hereto as may be reasonably requested by Xxxxx, including all business plans prepared by or for Seller
(viii) upon the request of Buyer no more often than annually, updated Appraisals of the Mortgaged Properties relating to the Purchased Assets, at Buyer’s sole cost and expense; provided, however, as long as no Event of Default has occurred and is continuing, Buyer shall not request an updated appraisal more than once in any 12 month period; and
(ix) such other reports as Buyer shall reasonably request (to the extent such requests do not unduly burden Seller)Exhibit XVIII.
(hj) Each Seller shall at all times comply in all material respects with all laws (including, without limitation, Prescribed Laws)laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over such Seller or any of its assets, assets and such Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence existence, and all licenses material to its business.
(ik) Each Seller agrees shall at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions in accordance with GAAP and set aside on its books from its earnings for each fiscal year all such proper reserves in accordance with GAAP.
(l) Each Seller shall observe, perform and satisfy all the terms, provisions, covenants and conditions required to be observed, performed or satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the Transaction Documents. Each Seller shall pay and discharge all Taxes, levies, liens and other charges on its assets and on the Collateral that, from time to time in each case, in any manner would create any lien or charge upon the Collateral, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided in accordance with GAAP in all material respects. Each Seller shall timely file all Tax returns required to be filed by it or with respect to all or any portion of the Collateral.
(m) Each Seller shall advise Buyer in writing of the opening of any new chief executive office or the closing of any such office and of any change in such Seller’s name or organizational structure or the places where the books and records pertaining to the Purchased Loan are held not less than thirty (30) days prior to taking any such action. Each Seller shall also give Buyer prompt written notice of any transfer of more than 20% of the direct or indirect ownership interests in any Seller Party.
(n) Each Seller will maintain records with respect to the Collateral and the conduct and operation of its business with no less a degree of prudence than if the Collateral were held by such Seller for its own account and will furnish Buyer, upon reasonable request by Buyer or its designated representative, with reasonable information reasonably obtainable by such Seller with respect to the Collateral and the conduct and operation of Xxxxxits business.
(o) Each Seller shall provide Buyer with reasonable access to any operating statements, it shall (A) execute any occupancy status and deliver such further documentsany other property level information, provide with respect to the Mortgaged Properties, plus any such additional information and reports and perform such other acts as Buyer may reasonably request, in each case, to the extent same is in such Seller’s possession or reasonably obtainable by such Seller.
(p) Each Seller shall maintain its existence as a limited liability company organized solely and in good standing under the law of the State of Delaware (unless such Seller shall have given Buyer at least thirty (30) days’ prior written notice that such Seller intends to change the jurisdiction of its organization) and shall not dissolve, liquidate, merge with or into any other Person or otherwise change its organizational structure or documents or incorporate or organize in any other jurisdiction, without the prior written approval of Buyer, which approval shall not be unreasonably withheld, conditioned or delayed.
(q) Each Seller shall promptly provide Buyer with notice of any Other Financing Agreements entered into by SAMC or any of its subsidiaries. Upon request of Buyer, the applicable Seller shall provide Buyer with copies (on a no-name basis) of the relevant provisions of such Other Financing Agreements (including any Other Financing Agreements entered into as of the date hereof) in order to insure compliance comply with all Prescribed Laws and to fully effectuate the purposes provisions of Section 4(b) of this Agreement andand Section 8(k) of the Guaranty.
Appears in 1 contract
Samples: Master Repurchase Agreement (Sutherland Asset Management Corp)
