Affirmative Covenants of Sellers. On and as of the Closing Date and until this Agreement is no longer in force with respect to any Transaction: (a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer of any change in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect. (b) Sellers shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10. (c) Sellers (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 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event. (e) Sellers shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time. (f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans. (g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith. (h) Sellers shall provide Buyer with the following financial and reporting information: (i) within fifteen (15) days after the last day of each calendar month, a Monthly Reporting Package; (ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package; (iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package; (iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan; (v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan; (vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default; (vii) upon Buyer’s request; (A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request; (B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and (C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request; (viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period; (ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and (x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect. (i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case to the extent non-compliance or the failure to maintain would not be reasonably likely to result in a Material Adverse Effect. (j) Sellers 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. (k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAP. (l) Sellers will maintain records with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own account. (m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request. (n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
Appears in 2 contracts
Samples: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Affirmative Covenants of Sellers. On and as of the A&R Closing Date and until this Agreement is no longer in force with respect to any Transaction:
(a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer of any change in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.
(b) Sellers shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(c) Sellers (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 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event.
(e) Sellers shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar month, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.
(i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case to the extent non-compliance or the failure to maintain would not be reasonably likely to result in a Material Adverse Effect.
(j) Sellers 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAP.
(l) Sellers will maintain records with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own account.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
Appears in 1 contract
Samples: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Affirmative Covenants of Sellers. On and as of Between the Closing Date and until this Agreement is no longer in force with respect to any Transaction:
(a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer of any change in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.
(b) Sellers shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(c) Sellers (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 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event.
(e) Sellers shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 date of this Agreement including the first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar monthClosing Date, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan except as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or provided in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.LMA:
(i) Sellers shall at promptly notify Buyers in writing if Sellers have Knowledge prior to Commencement and prior to Closing of: (1) any representations or warranties contained in Articles 4 or 5 that are no longer true and correct in any material respect or of any fact or condition that would constitute a material breach of any such representation or warranty as of Closing, (2) the occurrence of any event that would require any material changes or amendments to the schedules and exhibits attached to this Agreement, (3) of the occurrence of any event that may make the satisfaction of the conditions in Article 10 impossible or unlikely, or (4) the occurrence of any other event that violates any material covenants, conditions or agreements to be complied with or satisfied by Sellers under this Agreement;
(ii) Sellers will use all times (x) commercially reasonable efforts to comply in all material respects with all lawsLaws applicable to each Seller’s use of the Assets and operate and maintain the Stations and all operations in material conformity with the FCC Licenses, ordinancesthe Communications Act, and the rules and regulations of any federalthe FCC;
(iii) Sellers will maintain the Assets in customary repair, statemaintenance and condition, municipal or other public authority having jurisdiction over except for wear and tear incurred in the Ordinary Course of Business, and Sellers or any will continue to make capital expenditures in the Ordinary Course of their respective assets and Business as contemplated in the current capital expenditure plan of Sellers;
(yiv) do or cause Sellers will use all commercially reasonable efforts to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, the FCC Licenses relating to the Stations and all licenses material to its businessthe Assets and, except as set forth elsewhere in each case this Agreement, take any action reasonably necessary before the FCC, including the preparation and prosecution of applications for renewal of the FCC Licenses, if necessary, to the extent non-compliance or the failure to maintain would not be reasonably likely to result preserve such licenses in a full force and effect without Material Adverse Effect.;
(j) Sellers 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAP.
(lv) Sellers will maintain records with respect to in full force and effect reasonable property damage and liability insurance on the Collateral and Assets in at least the conduct and operation of their respective business with no less a degree of prudence than if amount provided for by the Collateral were held policies currently maintained by Sellers for their respective own account.Sellers;
(mvi) Sellers shall provide Buyer conduct the business of the Stations in the Ordinary Course of Business of the Stations;
(vii) Sellers shall use commercially reasonable efforts to preserve intact the business of the Stations and maintain the relations and goodwill, if any, with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with the business of the Stations;
(viii) Sellers shall use commercially reasonable access efforts to any operating statements, occupancy status cause the conditions set forth in Article 10 to be satisfied promptly; and
(ix) Sellers shall maintain all books and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, records relating to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably requestbusiness of the Stations.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Emmis Communications Corp)
Affirmative Covenants of Sellers. On From and as of after the Closing Date and until this Agreement is no longer in force with respect to any Transaction:
(a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer of any change in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.
(b) Sellers shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(c) Sellers (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 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event.
(e) Sellers shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 date of this Agreement including until the first priority security interest granted hereunder and of Closing Date, 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting informationshall:
(i) within fifteen (15) days after the last day of each calendar monthuse their respective commercially reasonable efforts to keep, a Monthly Reporting Packageor to cause to be kept, all Sellers Insurance Policies, or suitable replacements therefor, in full force and effect;
(ii) within forty-five (45) days after preserve their existence and keep their business organization intact; maintain existing franchises and licenses relating to the last day of each Retirement Center and the operation thereof in accordance with this Agreement; pay when due all obligations and liabilities arising under the Transferred Contracts to which they are a party; and use commercially reasonable efforts to preserve for Buyer the relationships of the first three fiscal quarters in any fiscal yearRetirement Center with suppliers, a Quarterly Reporting Packageemployees, residents and others with whom the Retirement Center has business relationships;
(iii) within one-hundred-twenty (120) days after maintain the last day Purchased Assets in a manner that is in compliance with all legal requirements and that is consistent with the Facility’s ordinary course of its fiscal year, an Annual Reporting Packagebusiness;
(iv) promptly and in any event within two (2) Business Days pay all of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loantheir liabilities as they come due;
(v) promptly pay and perform, in any event within two (2) Business Days the ordinary course of business, obligations under the Transferred Contracts to which either Seller’s actual knowledge, to of the extent that there exists Sellers is a mezzanine loan related to a Purchased Loan, (a) notice of any material events party in respect accordance with the respective terms and conditions of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased LoanTransferred Contracts;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after following the earlier end of (x) filingeach calendar month prior to the Closing Date, deliver to Buyer true and complete copies of the unaudited balance sheets and related unaudited statements of income of, or (y) relating to, the last filing extension period; and
(C) such other information regarding Facility for the month then ended, together with the notes, if any, related thereto, which shall have been prepared from and in accordance with the books and records of the Facility in a manner consistent with the Interim Financial Statements and the Interim Health Center Financial Statements, and which shall fairly present the financial conditionposition and results of operations of the Facility as of the date and for the period indicated. All liabilities of the Sellers, operations the Health Center Operator or the Facility will be accurately reflected or reserved against in such monthly balance sheets, except for liabilities incurred in the ordinary course of business of QRS Sellerthe Facility and in accordance with the provisions of this Agreement since the date of such financial statements. In connection with the delivery of such financial statements, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect Seller also shall deliver true and complete copies of any Purchased Loan as Buyer may reasonably requestthe adjusted trial balances used to prepare such financial statements;
(viiivii) within twenty thirty (2030) Business Days days following the end of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) calendar month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, prior to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereofClosing Date, notice and as of the commencementClosing Date, or threat in writing ofdeliver to Buyer updated Schedules 2.1(a)(v), any action4.8(a), suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i4.8(c) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.
(i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case to the extent non-compliance or the failure to maintain would not be reasonably likely to result in a Material Adverse Effect.
(j) Sellers 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAP.
(l) Sellers will maintain records with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own account.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.4.8(d);
Appears in 1 contract
Samples: Asset Purchase Agreement (American Retirement Corp)
Affirmative Covenants of Sellers. On and For so long as of the Closing Date and until this Agreement is no longer in force with respect to any Transactioneffect:
(a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer of any change in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.
(b) Sellers Each Seller shall provide Buyer with copies of such documents documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including certified copies of resolutions evidencing the approval of this Agreement and the other Facility Documents by the applicable Seller's board of directors or loan committee.
(cb) Sellers (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 of all Persons (other than security interests by or through Buyer) and (ii) Each Seller shall, at Buyer’s reasonable 's request, and at the applicable Seller's cost, take all action necessary to ensure that Buyer will have a first priority security interest in the Purchased Mortgage Loans subject and all other Collateral.
(c) Each Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Each Seller agrees that upon reasonable prior notice to the applicable Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, make copies of, and make extracts of, the Mortgage Files and any of and all documents, records, agreements, instruments or information relating to the Transactions Mortgage Loans in the event possession, or under the control, of such Transactions are recharacterized as secured financingsSeller, to the extent relevant to a Purchased Mortgage Loan and not material nonpublic information. The applicable Seller shall reimburse Buyer for any and all out-of-pocket costs and expenses reasonably incurred by Buyer and its designees in connection with Buyer's on-going due diligence and auditing activities pursuant to this Section 12(c).
(d) Sellers Each Seller shall notify (i) Buyer of the occurrence of any Default or Event of Default cause each Purchased Mortgage Loan subject to this Agreement to be serviced in accordance with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such eventSection 25 hereof.
(e) Sellers Each Seller shall promptly give Buyer prior notice each time that such Seller intends to make a material change, amendment or modification to the related Underwriting Guidelines which may affect the Purchased Mortgage Loans. Such Seller shall provide Buyer access to such intended change, amendment or modification (and whether by access to such Seller's website or otherwise). If Buyer determines, in its sole discretion, that a proposed change is not acceptable, Buyer will have no obligation to finance any event not later than two Mortgage Loans that are originated pursuant to the new Underwriting Guidelines;
(2f) Business Days following receipt) deliver to Each Seller shall provide Buyer (i) five (5) Business Days' notice before (x) the creation of any written new Subsidiary, which notice shall set forth a description of the occurrence purpose of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents such Subsidiary and (ii) any prompt notification of a change in the identity or authority of the president of FMC or FIC.
(g) Each Seller shall provide Buyer on each Purchase Date (with respect Mortgage Loan purchased on such date) and by no later than the fifth (5th) Business Day of each month (with respect to all Mortgage Loans that are subject to Transactions as of the last day of the preceding month), either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable Excel format with respect to all Purchased Mortgage Loans then subject to Transactions and shall provide Buyer with other information with respect to the Purchased Mortgage Loans in either Seller’s possession, and any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver such further instruments and documents and take such further actions additional reports as Buyer may reasonably request for with respect to the purposes of obtaining or preserving the full benefits of this Agreement including the first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewithMortgage Loans.
(h) Sellers Each Seller shall provide Buyer with the following financial and reporting information:
(i) As soon as available, but not later than within fifteen (15) 90 days after the last day of each calendar monththe applicable Seller's fiscal year, (A) the audited consolidated balance sheet as of the end of such year and the related consolidated statements of earnings, shareholders' equity and cash flow for such year, setting forth in comparative form the figures for the previous fiscal year, and accompanied by an opinion of a Monthly Reporting Packagenationally recognized independent accounting firm, which report shall state that such financial statements present fairly the financial position and results of operations of such Seller and such Seller's Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior years, except as stated therein (such opinion shall not be qualified or limited because of a restricted or limited examination by such auditors of any material portion of such Seller's or any subsidiary's records); and (B) an officer's certificate from a Responsible Officer of such Seller addressed to Buyer certifying that, as of such date, such Seller is in compliance with all of the terms, conditions and requirements of the Agreement and other Facility Documents (such certification to include in reasonable detail (in the form of Exhibit IX hereto) the calculations used in demonstrating compliance with the financial covenants set forth in Section 12(m) for all applicable periods during such fiscal year);
(ii) within forty-five (45) Within 60 days after the last day of each of the first three fiscal quarters in any fiscal year, (A) the unaudited consolidated balance sheet as of the close of such quarter and related statements of income and changes in cash flow for such quarter and that portion of the fiscal year ending as of the end of such quarter setting forth in comparative form the figures for the corresponding period in the prior year in each case certified by a Quarterly Reporting PackageResponsible Officer as fairly presenting the consolidated financial position of the applicable Seller and such Seller's Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP (except for the absence of footnotes and subject to year end audit adjustments); and (B) an officer's certificate from a Responsible Officer of Seller addressed to Buyer certifying that, as of such date, such Seller is in compliance with all of the terms, conditions and requirements of the Agreement and other Facility Documents (such certification to include in reasonable detail (in the form of Exhibit IX hereto) the calculations used in demonstrating compliance with the financial covenants set forth in Section 12(m) for all applicable periods during such fiscal year);
(iii) within one-hundred-twenty (120) Within 30 days after the last day of its each month in any fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, a compliance certificate from a Responsible Officer to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect best knowledge of such mezzanine loan or the related mezzanine loan borrowerofficer, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any no Default or Event of Default under any Transaction Document, the Agreement has occurred and is continuing (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) or if a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties Default or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited stating the nature thereof and the action which the applicable Seller proposes to one (1) request for each Purchased Loan in any twelve (12) month periodtake with respect thereto);
(ixiv) upon reasonable noticeUpon request by Buyer, copies of any financial statements, appraisals, annual plans or other relevant documents in the applicable Seller's possession useful in evaluating the credit of such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to Seller and such Purchased LoanSeller's Subsidiaries; and
(xv) If applicable, as soon as available, copies of all proxy statements, financial statements, and reports which the applicable Seller sends to its stockholders, and copies of all regular, periodic and special reports, and all registration statements under the Securities Act of 1933, as amended, that it files with the Securities and Exchange Commission or any government authority that may be substituted therefor, or with any national securities exchange.
(i) Each Seller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, within five (5) Business Days after service of process following written notice from Buyer, as to which a representation or either Seller’s knowledge thereof, notice of warranty made by the commencement, applicable Seller set forth in Schedule 1 hereto proves to be incorrect or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment untrue in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases material respect.
(j) Each Seller shall (i) relates to any Purchased Loanpreserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises; (ii) questions comply in all material respects with all Requirements of Laws (including all environmental laws and local, municipal, state or challenges the validity Federal ordinances, regulations or enforceability of any Transaction or Transaction Document, statutes regarding Predatory Lending Practices); and (iii) makes keep adequate records and books of account, in which complete entries will be made in accordance with GAAP consistently applied. Each Seller shall maintain, and shall make available to Buyer upon request, written policies and procedures to determine whether any Mortgage Loan contains any terms, or carries or carried any fees, charges or other costs, such that the requirements of the Home Ownership Equity Protection Act, 15 U.S.C. Section 1639 and 12 C.F.R. Section 226.32—Requirements for Certain Closed-End Home Mortgages, are applicable.
(k) Each Seller shall maintain insurance with financially sound and reputable insurance companies, and with respect to property and risks of a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or character usually maintained by entities engaged in the aggregatesame or similar business similarly situated, if adversely determinedagainst loss, damage and liability of the kinds and in the amounts customarily maintained by such entities. In addition, each Seller shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other Persons acting on behalf of it in amounts at least equal to such amounts as are required by criteria set forth by Xxxxxx Xxx for its approved Seller/Servicers, which insurance policies shall be obtained from insurance companies that are acceptable to Buyer in its reasonable discretion and shall name Buyer as a loss payee.
(l) Each Seller shall give notice to Buyer, immediately upon (and in any event not more than one Business Day after) the applicable Seller obtaining notice thereof, of:
(i) the occurrence of any Default or Event of Default;
(ii) any default or litigation related to any Collateral, any event or change in circumstances that has a Material Adverse Effect and any event or change in circumstances that could reasonably be reasonably likely expected to have a Material Adverse Effect.;
(iiii) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case to the extent non-compliance or the failure to maintain would not be reasonably likely to result in a Material Adverse Effect.
(j) Sellers 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 any Purchased Mortgage Loan, if such Seller acquires knowledge that the Mortgaged Property violates environmental law or has been provided, in all material respects, in accordance with GAAP.materially damaged so as to affect adversely the value as collateral of such Mortgage Loan; and
(liv) Sellers will maintain records any representation or warranty as to any Purchased Mortgage Loan (as set forth in Schedule 1) becomes incorrect or untrue in any material respect. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the applicable Seller setting forth details of the occurrence referred to therein and stating what action Seller has taken or proposes to take with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own accountthereto.
(m) Sellers FIC, on a consolidated basis, shall provide Buyer comply with reasonable access to the following financial covenants: Financial Covenant Adjusted Tangible Net Worth Adjusted Tangible Net Worth shall, at all times, exceed $250,000,000. Total Leverage Ratio Total Leverage Ratio shall not, at any operating statementstime, occupancy status and other property level informationexceed 16:1. Recourse Debt Leverage Ratio Recourse Debt Leverage Ratio shall not, each with respect to each Mortgaged Propertyat any time, and exceed 10:1. Profitability Seller shall not have Net Income of less than $1.00 in any such additional reports (in each casetwo consecutive fiscal quarters. Minimum Liquidity Liquidity of Seller shall, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably requestat all times, exceed $15,000,000. Minimum Committed Credit Committed Credit shall, at all times, exceed $1,000,000,000.
(n) With respect FIC shall continuously conduct its business so as to each Future Funding Loanqualify as a REIT and will not revoke its REIT status. FIC does not know of any currently existing event or condition which would cause or is reasonably likely to cause FIC to cease to qualify as a REIT. However, the applicable Seller if FIC at any point decides to revoke its REIT status or ceases to qualify as a REIT, FIC shall satisfy all future funding obligations for each immediately provide Buyer with written notice of such Future Funding Loan decision or such failure to the extent required pursuant to the applicable Purchased Loan Documentsqualify.
Appears in 1 contract
Samples: Master Repurchase Agreement (Fieldstone Investment Corp)
Affirmative Covenants of Sellers. On (a) From the date hereof and prior to the Closing, unless Buyer has otherwise consented, each Seller will take the following actions with respect to the Business:
(i) Continue to conduct the operations of the Business respectively conducted by such Seller only in the ordinary and usual course of business and not dispose of any of the Purchased Assets respectively owned by such Seller except in the ordinary course of business, in each case, consistent with past practices;
(ii) Use its reasonable efforts to retain its employees and preserve its present business relationships with customers, suppliers and others having dealings with Seller, and continue to compensate its employees consistent with past custom and practice;
(iii) Maintain the Purchased Assets respectively owned by such Seller in customary repair, order and condition and maintain all insurance on such Purchased Assets in effect as of the Closing Date and until date of this Agreement is no longer in force with respect to any Transaction:Agreement;
(aiv) Promptly after obtaining actual knowledge thereofMaintain the existence of and protect its Intellectual Property;
(v) Comply with all legal requirements and contractual obligations applicable to the Business and avoid incurring any material liability, Sellers shall promptly notify including, without limitation, those relating to the public health and safety or the environment;
(vi) Permit Buyer of any change in and its employees, agents, environmental consultants, appraisers, and accounting and legal representatives and their respective business operations and/or financial condition that would be reasonably likely representatives to have reasonable access to the books, records, contracts, leases, key personnel, independent accountants, plants and equipment of the Business;
(vii) Use its best efforts to cause a Material Adverse Effectcopy of the 1996 Audit to be delivered to Buyer prior to November 1, 1996; and
(viii) Use its best efforts to comply with all conditions to Buyer's obligations to close and to make all necessary filings and cooperate with Buyer to obtain all third party and governmental approvals necessary or desirable to consummate the transactions contemplated hereby.
(b) Sellers Each Seller shall provide Buyer with copies use its best efforts to obtain, at its sole cost and expense, prior to the Closing all consents and estoppels which, in the reasonable judgment of such documents as Buyer may reasonably request evidencing Buyer, are necessary or appropriate for the truthfulness transfer or assignment of each of the representations set forth material Purchased Assets and the Business to Buyer and the consummation of the transactions contemplated hereby. All such consents and estoppels shall be in Section 10.
(c) Sellers (i) shall defend the right, title writing and interest of Buyer in form and substance reasonably satisfactory to the Collateral againstBuyer, and take such other action as is necessary executed counterparts thereof will be delivered to remove, the Liens 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible promptly after receipt thereof but in no event later than two (2) Business Days after obtaining actual knowledge of such eventthe Closing.
(ec) To the extent that Sellers' rights under any agreement, Lease, contract or other Purchased Asset to be transferred and assigned to Buyer hereunder may not be transferred or assigned without the consent of another person which has not been obtained, and if the condition precedent set forth in Section 3.1(d) is not satisfied as a result of such failure to obtain such consent but Buyer elects to waive such condition, this Agreement shall not constitute an agreement to transfer or assign the same if an attempted transfer or assignment would constitute a breach thereof or be unlawful, and Sellers, at their sole cost and expense, shall use their best efforts to obtain any such required consent(s) as promptly as possible. If any such consent shall not be obtained or if any attempted transfer or assignment would be ineffective or would materially impair Buyer's rights under the asset in question so that Buyer would not in effect acquire the benefit of all such rights, Sellers, to the maximum extent permitted by law and the asset in question, and without any obligation to pay any additional monies, shall act after the Closing as Buyer's agent in order to obtain for Buyer the benefits thereunder, and Sellers shall promptly (cooperate, to the maximum extent permitted by law and such asset, with Buyer in any event not later than two (2) Business Days following receipt) deliver other reasonable arrangement designed to Buyer (i) provide such benefit to Buyer. Notwithstanding any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant other provision to the contrary contained in this Agreement, if Seller shall comply with its obligations under this Section 4.1(c), then Buyer shall bear the risk and expense of any failure by Seller to obtain the consent to transfer or assign any such Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to timeAsset.
(fd) Sellers will permit Buyer to inspect Sellers’ records with respect Prior to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer Closing, each Seller shall have discharged, removed or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of satisfied any and all thereof, subject monetary liens and encumbrances against the Owned Real Estate which now exist or which may arise prior to the terms Closing, except for amounts owed for current year taxes, which amounts shall be prorated as of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act the Closing Date in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased LoansSection 2.2(d).
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar month, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.
(i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case to the extent non-compliance or the failure to maintain would not be reasonably likely to result in a Material Adverse Effect.
(j) Sellers 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAP.
(l) Sellers will maintain records with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own account.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gorges Quik to Fix Foods Inc)
Affirmative Covenants of Sellers. On and as of the Closing Date date hereof and until this Agreement is no longer in force with respect to any Transaction, each Seller shall observe the following covenants:
(a) Promptly after obtaining actual knowledge thereof, Sellers Such Seller shall promptly notify Buyer Agent of the occurrence of any change in their respective business operations and/or financial Material Adverse Effect or any event, circumstance, development or condition that would be is reasonably likely expected to have a Material Adverse Effect, promptly upon its obtaining Knowledge thereof, but in no event later than the fifth (5th) Business Day after obtaining Knowledge of such event.
(b) Sellers Such Seller shall provide Buyer Agent with copies of such documents within its possession or available to such Seller without unreasonable effort or expense as Buyer or Buyer Agent may reasonably request in writing evidencing the truthfulness of the representations set forth in Section 10Article 10 other than documents that such Seller is not permitted to disclose pursuant to a confidentiality obligation (in which case, such Seller shall deliver redacted versions of such documents, to the extent permitted under such confidentiality obligation).
(c) Sellers Such Seller (i1) 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 Liens, claims and demands of all Persons (other than security interests by or through Buyer) and (ii2) shall, at Buyer’s reasonable or Buyer Agent’s request, take all action actions reasonably necessary to ensure that Buyer Agent will have a first priority security interest in the Purchased Loans subject created or intended to any of the Transactions be created hereby, in the event such Transactions are recharacterized as secured financingsfinancings to the extent a security interest can be perfected by filing in the appropriate filing offices.
(d) Sellers Such Seller shall notify (i) Buyer Agent of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, such Seller as soon as possible but in no event later than two the fifth (25th) Business Days Day after obtaining actual knowledge Knowledge of such event.
(e) Sellers With respect to each applicable Purchased Loan, such Seller shall provide evidence of any Hedging Transaction as reasonably requested by Buyer, and provided same is in Seller’s possession. Such Seller shall not amend or modify in any material respect, grant any material waiver or terminate any Hedging Transaction to which such Seller is a party. If requested by Buyer, such Seller shall provide Buyer additional information reasonably requested by Buyer relating to any Hedging Transactions, provided that such information is in Seller’s possession.
(f) Such Seller shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar month, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service following receipt of process written notice thereof) deliver notice to Buyer Agent of (i) the receipt of written notice of any default under any material agreement, contract or either Seller’s knowledge thereof, other instrument to which such Seller or Guarantor is a party or any acceleration of the maturity of any indebtedness owing by such Seller or Guarantor which would constitute an Event of Default under Section 14(xvi); (ii) the receipt of written notice of the commencement, or threat in writing commencement of, and any actionmaterial determination in, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof any litigation with any third party or any judgment in proceeding before any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in Governmental Authority affecting any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) Party that, individually or in the aggregate, if adversely determined, could reasonably be reasonably likely to have a Material Adverse Effect.
(i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case to the extent non-compliance or the failure to maintain would not be reasonably likely expected to result in a Material Adverse Effect, (iii) the receipt of written notice of the occurrence of a material default or an event of default received or sent by a Seller Party pursuant to the Loan Documents or (iv) the receipt of written notice of any Environmental Complaint or any material liability arising from any Environmental Complaint with regard to a Purchased Loan.
(jg) Sellers (i) such Seller shall at all times keep proper books of records provide such information 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 take such proper reserves in accordance with GAAP.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien upon the Collateral, except for any such Taxes actions as are being appropriately contested reasonably requested by Buyer in good faith by appropriate proceedings diligently conducted writing in order to assist Buyer in maintaining compliance with the PATRIOT Act and with respect to which adequate reserves have been provided, in all material respects, in accordance with GAAP.
(lii) Sellers will maintain records with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own account.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable such Seller qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, Buyer Agent, if Buyer Agent has requested, in a written notice to such Seller at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to such Seller shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect Agent of its signature page to each Future Funding Loanthis Agreement, the applicable Seller condition set forth in this clause (ii) shall satisfy all future funding obligations for each such Future Funding Loan be deemed to the extent required pursuant to the applicable Purchased Loan Documentsbe satisfied).
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
Affirmative Covenants of Sellers. On and as of Prior to the Closing Date and until this Agreement is no longer in force with respect to any TransactionClosing, Sellers shall:
(a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer conduct the Business in the usual and ordinary course of any change business in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.accordance with past custom and practice;
(b) Sellers shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(c) Sellers (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 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event.
(e) Sellers shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar month, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.
(i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain keep in full force and effect their respective legal corporate existence;
(c) use Best Efforts to retain the Txxx Facility Employees and preserve their present business relationships in accordance with ordinary course of business;
(d) maintain the tangible Assets in customary repair, order and condition and maintain insurance related to the Assets comparable to that in effect on the date of this Agreement;
(e) maintain their Books and Records in accordance with past custom and practice;
(f) in connection with SECTION 4.4, permit Buyer and its Representatives and potential lenders and their representatives, for a period from the date hereof until the Closing, to have access to the Sellers' books and records, invoices, contracts, leases, key personnel, independent accountants, property, facilities, equipment and other things reasonably related to the Assets, to conduct due diligence of the Assets, including, but not limited to, making a detailed review of prior operating results and the financial condition of Sellers and the Assets, reviewing the condition of the Assets and conducting environmental, health and safety audits of all licenses real property and facilities to be leased or purchased pursuant hereto; and Sellers will fully cooperate and assist in such investigation; provided, that Buyer shall use its Best Efforts not to materially disrupt the Assets, the Business or the operations of the Txxx Facility; and, provided further and notwithstanding anything contained herein to the contrary, that the exercise by Buyer of any such rights of access and due diligence shall not affect or mitigate (i) any covenants, representations and warranties of Sellers or (ii) Buyer's rights to indemnity under this Agreement; and
(g) promptly inform Buyer in writing of any material to its businessvariances from the representations and warranties contained in SECTION 2 hereof or any breach of any covenant or agreement contained in this SECTION 4, except in each case including, without limitation, the Disclosure Schedules related thereto and promptly deliver to Buyer a Disclosure Schedule or supplement or amendment to an existing Disclosure Schedule, as appropriate, as any Seller may at any time or from time to time prior to the extent non-compliance Closing determine is necessary to correct any material inaccuracy in the representation and warranty contained in SECTION 2 hereof or the failure to maintain correct any such material inaccuracy that would not be reasonably likely to result in a Material Adverse Effect.
(j) Sellers shall at all times keep proper books of records exist if said representation 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required warranty were to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under restated as of the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAPClosing.
(l) Sellers will maintain records with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own account.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Oil Dri Corporation of America)
Affirmative Covenants of Sellers. On and as of Between the Closing Date and until this Agreement is no longer in force with respect to any Transaction:
(a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer of any change in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.
(b) Sellers shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(c) Sellers (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 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event.
(e) Sellers shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 date of this Agreement including the first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar monthClosing Date, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan except as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or provided in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.LMA:
(i) Sellers shall at promptly notify Buyers in writing if Sellers have Knowledge prior to Closing of: (1) any representations or warranties contained in Articles 4 or 5 that are no longer true and correct in any material respect or of any fact or condition that would constitute a material breach of any such representation or warranty as of Closing, (2) the occurrence of any event that would require any material changes or amendments to the schedules and exhibits attached to this Agreement, (3) of the occurrence of any event that may make the satisfaction of the conditions in Article 10 impossible or unlikely, or (4) the occurrence of any other event that violates any material covenants, conditions or agreements to be complied with or satisfied by Sellers under this Agreement; provided, however, that no such notice shall qualify or otherwise limit in any way Sellers’ representations, warranties, covenants or agreements herein.
(ii) Sellers will use all times (x) commercially reasonable efforts to comply in all material respects with all lawsLaws applicable to each Seller’s use of the Assets and operate and maintain the Stations and all operations in material conformity with the FCC Licenses, ordinancesthe Communications Act, and the rules and regulations of any federalthe FCC;
(iii) Sellers will maintain the Assets in customary repair, statemaintenance and condition, municipal or other public authority having jurisdiction over except for wear and tear incurred in the Ordinary Course of Business, and Sellers or any will continue to make capital expenditures in the Ordinary Course of their respective assets and Business as contemplated in the current capital expenditure plan of Sellers, if any;
(yiv) do or cause Sellers will use all commercially reasonable efforts to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, the FCC Licenses relating to the Stations and all licenses material to its businessthe Assets and, except as set forth elsewhere in each case this Agreement, take any action reasonably necessary before the FCC, including the preparation and prosecution of applications for renewal of the FCC Licenses, if necessary, to the extent non-compliance or the failure to maintain would not be reasonably likely to result preserve such licenses in a Material Adverse Effect.
(j) Sellers shall at all times keep proper books of records full force 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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, effect in all material respects, in accordance with GAAP.;
(lv) Sellers will maintain records with respect to in full force and effect reasonable property damage and liability insurance on the Collateral and Assets in at least the conduct and operation of their respective business with no less a degree of prudence than if amount provided for by the Collateral were held policies currently maintained by Sellers for their respective own account.Sellers;
(mvi) Sellers shall provide Buyer conduct the business of the Stations in the Ordinary Course of Business of the Stations;
(vii) Sellers shall use commercially reasonable efforts to preserve intact the business of the Stations and maintain the relations and goodwill, if any, with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with the business of the Stations;
(viii) Sellers shall use commercially reasonable access efforts to any operating statements, occupancy status cause the conditions set forth in Article 10 to be satisfied promptly; and
(ix) Sellers shall maintain all books and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, records relating to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably requestbusiness of the Stations.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Emmis Communications Corp)
Affirmative Covenants of Sellers. On Between the date of this Agreement and as of the Closing Date and until this Agreement is no longer in force with respect to any Transaction:
(a) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer of any change in their respective business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.
(b) Sellers shall provide Buyer with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(c) Sellers (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 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) Sellers shall notify (i) Buyer of the occurrence of any Default or Event of Default with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event.
(e) Sellers shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral and the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereofDate, subject to the terms of any confidentiality agreement between Buyer Time Brokerage Agreement and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver such further instruments and documents and take such further actions except as Buyer may reasonably request for the purposes of obtaining or preserving the full benefits of expressly prohibited by this Agreement including the first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day prior written consent of each calendar month, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereofBuyers, which in any of the foregoing cases (i) relates to any Purchased Loanconsent shall not be unreasonably withheld, (ii) questions conditioned or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.delayed:
(i) Sellers shall at promptly notify Buyers in writing if Sellers have Knowledge prior to the Closing of: (1) any representations or warranties contained in Articles 4 or 5 that are no longer true and correct in any material respect, (2) the occurrence of any event that would require any changes or amendments to the schedules and exhibits attached to this Agreement, or (3) the occurrence of any other event that violates any covenants, conditions or agreements to be complied with or satisfied by Sellers under this Agreement; provided, however, that no such notice shall qualify or otherwise limit in any way Sellers’ representations, warranties, covenants or agreements herein;
(ii) Sellers will notify Buyers of supplements or amendments to the Schedule of Exceptions with respect to any matter arising after the date of this Agreement that would have been required to be set forth, provided, however, that any such supplements or amendments, shall not relieve Sellers of any liability for inaccuracy of any representation or warranty or Sellers’ obligation to remedy any such inaccuracy in a timely manner.
(iii) Except as noted on Schedule 1.1(a), Sellers will comply in all times (x) comply material respects with all lawslaws applicable to each Seller’s use of the Assets and operate and maintain the Station and its operations in conformity with the FCC Licenses, ordinancesthe Communications Act, and the rules and regulations of any federalthe FCC;
(iv) Sellers will maintain the Assets in customary repair, statemaintenance and condition, municipal or other public authority having jurisdiction over except for wear and tear incurred in the ordinary course of business;
(v) Except as noted on Schedule 1.1(a), Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and will maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case the FCC Licenses relating to the extent non-compliance or Station and the failure Assets and take any action necessary before the FCC, including the preparation and prosecution of applications for renewal of the FCC Licenses, if necessary, to maintain would not be reasonably likely to result preserve such licenses in a Material Adverse Effect.full force and effect without material adverse change; and
(j) Sellers 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAP.
(lvi) Sellers will maintain records with respect to in full force and effect reasonable property damage and liability insurance on the Collateral and Assets in at least the conduct and operation of their respective business with no less a degree of prudence than if amount provided for by the Collateral were held policies currently maintained by Sellers for their respective own accountSellers.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
Appears in 1 contract
Affirmative Covenants of Sellers. On Between the date of this Agreement and as of the Closing Date and until this Agreement is no longer Date, except as provided in force with respect to any Transaction:
the LMA: (ai) Promptly after obtaining actual knowledge thereof, Sellers shall promptly notify Buyer Buyers in writing if Sellers have Knowledge prior to Closing of: (1) any representations or warranties contained in Articles 4 or 5 that are no longer true and correct in any material respect or of any change in their respective business operations and/or financial fact or condition that would be reasonably likely to have constitute a Material Adverse Effect.
material breach of any such representation or warranty as of Closing, (b2) Sellers shall provide Buyer with copies the occurrence of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(c) Sellers (i) shall defend the right, title and interest of Buyer in and any event that would require any material changes or amendments to the Collateral againstschedules and exhibits attached to this Agreement, and take such other action as is necessary to remove, the Liens of all Persons (other than security interests by or through Buyer3) 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) Sellers shall notify (i) Buyer of the occurrence of any Default event that may make the satisfaction of the conditions in Article 10 impossible or Event of Default with respect to either Sellerunlikely, and or (ii4) the Depository of the occurrence of any Event of Default other event that violates any material covenants, conditions or agreements to be complied with respect to either Selleror satisfied by Sellers under this Agreement; provided, in each casehowever, as soon as possible but in that no event later than two (2) Business Days after obtaining actual knowledge of such event.
(e) Sellers notice shall promptly (and qualify or otherwise limit in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and way Sellers’ representations, warranties, covenants or agreements herein. (ii) any other information Sellers will use all commercially reasonable efforts to comply in all material respects with respect all Laws applicable to the Purchased Loans in either each Seller’s possession, any Affiliate use of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.
(f) Sellers will permit Buyer to inspect Sellers’ records with respect to the Collateral Assets and operate and maintain the conduct and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representative, at such reasonable times and with reasonable frequency, and to make copies of extracts of any Stations and all thereofoperations in material conformity with the FCC Licenses, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.
(g) At any time from time to time upon the reasonable request of Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly execute and deliver 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 first priority security interest 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 Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this AgreementCommunications Act, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar month, a Monthly Reporting Package;
(ii) within forty-five (45) days after the last day of each of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect.
(i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federalthe FCC; (iii) Sellers will maintain the Assets in customary repair, statemaintenance and condition, municipal or other public authority having jurisdiction over except for wear and tear incurred in the Ordinary Course of Business, and Sellers or any will continue to make capital expenditures in the Ordinary Course of their respective assets and Business as contemplated in the current capital expenditure plan of Sellers, if any; (yiv) do or cause Sellers will use all commercially reasonable efforts to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, the FCC Licenses relating to the Stations and all licenses material to its businessthe Assets and, except as set forth elsewhere in each case this Agreement, take any action reasonably necessary before the FCC, including the preparation and prosecution of applications for renewal of the FCC Licenses, if necessary, to the extent non-compliance or the failure to maintain would not be reasonably likely to result preserve such licenses in a Material Adverse Effect.
(j) Sellers shall at all times keep proper books of records full force 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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, effect in all material respects, in accordance with GAAP.
; (lv) Sellers will maintain records with respect to in full force and effect reasonable property damage and liability insurance on the Collateral and Assets in at least the conduct and operation of their respective business with no less a degree of prudence than if amount provided for by the Collateral were held policies currently maintained by Sellers for their respective own account.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.Sellers; 21
Appears in 1 contract
Samples: Asset Purchase Agreement
Affirmative Covenants of Sellers. On Following the execution of this -------------------------------- Agreement and as of prior to the Closing Date and until this Agreement is no longer Closing, unless Buyer otherwise agrees in force with respect to any Transactionwriting, Sellers will:
(a) Promptly after obtaining actual knowledge thereofconduct the Business (including, Sellers shall promptly notify Buyer without limitation, the collection of any change receivables, incurrence of capital expenditures and purchase of Whole Goods Inventory and Parts Inventory) only in their respective the usual and ordinary course of business operations and/or financial condition that would be reasonably likely to have a Material Adverse Effect.in accordance with past custom and practice;
(b) Sellers shall provide Buyer carry on the Business in the same manner as presently conducted and keep their organization and properties intact, including their present business operations, physical facilities, working conditions and employees and its present relationships with copies of such documents as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.lessors, licensors, licensees, suppliers, distributors and customers and others having business relations with it;
(c) Sellers maintain the Purchased Assets and the Leased Real Property in good operating condition (i) shall defend the right, title reasonable wear and interest of Buyer in and to the Collateral against, and take such other action as is necessary to remove, the Liens of all Persons (other than security interests by or through Buyertear excepted) and (ii) shallrepair, maintain insurance reasonably comparable to that in effect on the date hereof, maintain Whole Goods Inventory, supplies and spare parts at Buyer’s reasonable requestcustomary operating levels consistent with past practices, take all action necessary to ensure that Buyer will have a first priority security interest replace in accordance with past practice any inoperable, worn out or obsolete Purchased Assets with assets of comparable quality and, in the Purchased Loans subject event of a casualty, loss or damage to any of the Transactions in Purchased Assets prior to the event Closing Date for which Seller is insured, either repair or replace such Transactions are recharacterized as secured financings.Purchased Assets or, if Buyer agrees, transfer the proceeds of such insurance to Buyer;
(d) Sellers shall notify maintain their respective books, accounts (iincluding working capital) Buyer of the occurrence of any Default or Event of Default and records in accordance with respect to either Seller, and (ii) the Depository of the occurrence of any Event of Default with respect to either Seller, in each case, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event.GAAP;
(e) Sellers shall promptly (maintain in full force and in any event not later than two (2) Business Days following receipt) deliver to Buyer (i) any written notice effect the existence of the occurrence of an “event of default” (however defined) received by either Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to the Purchased Loans in either Seller’s possession, any Affiliate of either Seller’s possession, or obtainable by either Seller without commercially unreasonable effort or expense as may be reasonably requested by Buyer from time to time.all material Proprietary Rights;
(f) Sellers will permit Buyer to inspect Sellers’ records comply with respect all legal requirements and contractual obligations applicable to the Collateral Business and the conduct Purchased Assets and operation of their respective business related thereto upon reasonable prior written notice from Buyer or its designated representativepay all applicable taxes, at such reasonable times and consistent with reasonable frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyer and Sellers, and if no such confidentiality agreement then exists between Buyer and Sellers, Buyer and Sellers shall act in accordance with customary market standards regarding confidentiality. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Sellers’ business related to the Purchased Loans.past practice;
(g) At cause its current insurance policies not to be canceled or terminated or any time from time of the coverage thereunder to time upon lapse, unless, simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies to the extent practicable for market premiums are in full force and effect;
(h) cooperate with Buyer and use its reasonable request best efforts to make all registrations, filings and applications, to give all notices and to obtain all governmental, third party or other consents, transfers, approvals, orders, qualifications and waivers necessary or desirable for the consummation of the transactions contemplated hereby and to cause the other conditions to Buyer, at the sole joint and several expense of Sellers, Sellers will promptly and duly 's obligation to close specified in Section 2.1 above to be satisfied;
(i) execute and deliver such further instruments of conveyance and documents transfer and take such further actions additional action as Buyer may reasonably request for to effect, consummate, confirm or evidence the purposes of obtaining or preserving the full benefits of this Agreement including the first priority security interest 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 Collateral shall be or become evidenced transactions contemplated by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer or Custodian, duly endorsed in blank, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(h) Sellers shall provide Buyer with the following financial and reporting information:
(i) within fifteen (15) days after the last day of each calendar month, a Monthly Reporting Package;; and
(ii) within forty-five (45) days after promptly inform Buyer in writing of any variances from the last day representations and warranties contained in Article IV or elsewhere in this Agreement or any breach of each any covenants hereunder by either of the first three fiscal quarters in any fiscal year, a Quarterly Reporting Package;
(iii) within one-hundred-twenty (120) days after the last day of its fiscal year, an Annual Reporting Package;
(iv) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, (a) notice of material events in respect of QRS Seller, TRS Seller, Guarantor, Pledgor, Manager or REIT, any Mortgagor in respect of any Purchased Loan, any Purchased Loan or the Mortgaged Property collateralizing any Purchased Loan, (b) notice of any Credit Event, and (c) notice of any Material Default or “event of default” (however defined) under any Purchased Loan;
(v) promptly and in any event within two (2) Business Days of either Seller’s actual knowledge, to the extent that there exists a mezzanine loan related to a Purchased Loan, (a) notice of any material events in respect of such mezzanine loan or the related mezzanine loan borrower, (b) notice of any default or “event of default” (however defined) under any related mezzanine loan documentation, (c) notice of any default or “event of default” (however defined) under any intercreditor documentation relating to such mezzanine loan and the applicable Purchased Loan;
(vi) promptly and in any event within one (1) Business Day of either Seller’s actual knowledge, (A) notice of any Default or Event of Default under any Transaction Document, and (B) notice of any default on the part of Guarantor under any indebtedness which could give rise to an Event of Default;
(vii) upon Buyer’s request;
(A) a listing of any changes in Purchased Loan related hedging transactions with hedge counterparties or hedging transactions with hedge counterparties in respect of the facility established pursuant to the Transaction Documents, setting forth the names of the hedge counterparties and the material terms of each such hedging transaction, delivered within ten (10) days after Buyer’s request;
(B) copies of QRS Seller’s, TRS Seller’s and Guarantor’s Federal Income Tax returns, if any, delivered within thirty (30) days after the earlier of (x) filing, or (y) the last filing extension period; and
(C) such other information regarding the financial condition, operations or business of QRS Seller, TRS Seller, Guarantor, Pledgor, REIT, or any Mortgagor in respect of any Purchased Loan as Buyer may reasonably request;
(viii) within twenty (20) Business Days of Buyer’s request, an Appraisal relating to any Mortgaged Property collateralizing any Purchased Loan; provided, that so long as no Event of Default has occurred and is continuing, Buyer’s requests under this clause (viii) shall be limited to one (1) request for each Purchased Loan in any twelve (12) month period;
(ix) upon reasonable notice, such other reports reasonably requested by Buyer with respect to any Purchased Loan, to the extent available to Sellers pursuant to the Purchased Loan Documents related to such Purchased Loan; and
(x) within five (5) Business Days after service of process or either Seller’s knowledge thereof, notice of the commencement, or threat in writing of, any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof or any judgment in any action, suit, proceeding, investigation or arbitration involving QRS Seller, TRS Seller, Guarantor or Pledgor or assets thereof, which in any of the foregoing cases (i) relates to any Purchased Loan, (ii) questions or challenges the validity or enforceability of any Transaction or Transaction Document, (iii) makes a claim or claims against QRS Seller, TRS Seller or Pledgor in an aggregate amount in excess of $250,000 or makes a claim against Guarantor in an aggregate amount in excess of $20,000,000 or (iv) that, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse EffectSellers.
(i) Sellers shall at all times (x) comply with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Sellers or any of their respective assets and (y) do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect their respective legal existence, and all licenses material to its business, except in each case to the extent non-compliance or the failure to maintain would not be reasonably likely to result in a Material Adverse Effect.
(j) Sellers 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.
(k) Sellers shall observe, perform and satisfy all the terms, provisions and covenants required to be observed, performed or satisfied by Sellers, and shall pay when due all costs, fees and expenses required to be paid by Sellers, under the Transaction Documents. Sellers shall pay and discharge all Taxes, levies, liens and other charges on their respective assets and on the Collateral that, in each case, would create any Lien 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 all material respects, in accordance with GAAP.
(l) Sellers will maintain records with respect to the Collateral and the conduct and operation of their respective business with no less a degree of prudence than if the Collateral were held by Sellers for their respective own account.
(m) Sellers shall provide Buyer with reasonable access to any operating statements, occupancy status and other property level information, each with respect to each Mortgaged Property, and any such additional reports (in each case, to the extent readily obtainable by Sellers or in Servicer’s possession) as Buyer may reasonably request.
(n) With respect to each Future Funding Loan, the applicable Seller shall satisfy all future funding obligations for each such Future Funding Loan to the extent required pursuant to the applicable Purchased Loan Documents.
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