Affirmative Covenants of the Seller. (a) The Seller shall promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement. (b) The Seller (1) shall defend the right, title and interest of Buyer in and to the Purchased Securities against, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing. (c) The Seller will permit Buyer, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof. (d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer. (e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith. (f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding. (g) The Seller shall provide Buyer with the following financial and reporting information: (i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and (ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year. (h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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. (i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default. (j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements. (k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 3 contracts
Samples: Master Repurchase Agreement (Hanover Capital Mortgage Holdings Inc), Master Repurchase Agreement (Hanover Capital Mortgage Holdings Inc), Master Repurchase Agreement (Hanover Capital Mortgage Holdings Inc)
Affirmative Covenants of the Seller. Until the Investment is reduced to zero and all other amounts to be remitted to the Purchaser hereunder have been paid in full, the Seller in its capacity as Seller and Servicer covenants and agrees with the Purchaser that it will, unless the Purchaser has otherwise consented in writing:
(a) The Seller shall promptly notify Buyer of comply with all laws, rules, regulations and orders applicable to it and all or any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its businesses and properties, except where the failure to do so would not materially adversely affect the Purchaser's interest hereunder or its ability to perform its obligations under the Agreement.hereunder;
(b) The Seller (1) shall defend maintain its existence in the right, title and interest jurisdiction of Buyer in and to the Purchased Securities againstits incorporation, and take such other action as is necessary qualify and remain qualified in good standing in each jurisdiction where the failure to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer be so qualified could materially adversely affect its ability to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.perform its obligations hereunder;
(c) The Seller will permit Buyermaintain and implement administrative and operating procedures, and keep and maintain all records and other information, reasonably necessary or any designated representative thereof, to inspect such Seller’s records with respect to advisable for the collection of the Purchased Securities and Receivables (including, without limitation, records adequate to permit the conduct and operation daily identification of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any Purchased Receivables and all thereof.Collections and adjustments to Purchased Receivables);
(d) If the Seller shall at any time become entitled and from time to receive time, after the occurrence of a Servicer Default which is continuing, during regular business hours, permit the Administrative Agent, its agents or shall receive any rightsrepresentatives upon five Business Days' prior written notice to (i) examine and make copies of all Receivable Files in its possession (or under its control), whether in addition to, in substitution of, as a conversion of, or in exchange and (ii) visit its zone offices for the Purchased Securities, or otherwise in respect thereof, purpose of examining such Receivable Files and discussing matters relating to the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer Related Security and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of its performance under the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver Receivables or hereunder with any of its officers or employees having knowledge of such amounts to the Buyer.matters;
(e) At any time from time at its expense timely and fully perform and comply with all material provisions and covenants required to time upon prior written request of Buyer, at the sole expense of the Seller, be observed by the Seller will promptly and duly execute and deliver such further instruments and documents and take such further actions as Buyer may reasonably request for under 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 Contracts related to the Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.Receivables;
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer comply in connection all material respects with the Transaction effected by this Agreement, Seller shall so withhold (if so required) Credit and shall make payments Collection Policy in regard to Buyer so that the net amount received by Buyer after each Purchased Receivable and any Contract related to such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.Receivable;
(g) The Seller shall provide Buyer make all payments payable by it to government agencies in accordance with applicable law and others where a statutory lien or deemed trust might arise having priority over the following financial Purchaser's interest in any Purchased Receivables and reporting information:Related Security;
(h) take all steps necessary to obtain the discharge of any financing statement, registration, recording, filing or other document similar in effect relating to any Purchased Receivables, Related Security or Collections except those in favour of the Purchaser in accordance herewith or subordinate to the rights of the Purchaser thereunder; and
(i) Within 45 days after treat the last day sale and assignment to the Purchaser under this Agreement of the first three fiscal quarters in any fiscal yearPurchased Receivables, an unaudited statement of the Seller’s income Related Security and expenses Collections as a sale for such quarter and assets and liabilities as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such yearall purposes.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Chrysler Financial Corp), Receivables Sale Agreement (Chrysler Financial Corp)
Affirmative Covenants of the Seller. From the date hereof until the Final Termination Date, the Seller covenants and agrees that it will, unless the Trust shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any material adverse change comply in all respects with all applicable laws, rules, regulations and orders with respect to it, its business operations and/or financial condition; providedand properties and all Pool Assets, however, that nothing in this Section 10 shall relieve such compliance to include paying before the same become delinquent all Taxes and Security Interests imposed upon the Seller of or its obligations under property in accordance with its normal policies with respect thereto, except to the Agreement.extent the same are contested in good faith and by appropriate proceedings or where failure to do so could not reasonably be expected to have a Material Adverse Effect;
(b) The preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified as an extra-provincial corporation or other out-of-jurisdiction corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect;
(c) at any time and from time to time during regular business hours, upon five Business Days’ prior written notice, subject to Section 10.9, (A) assemble such of the Records or copies thereof in its possession or control as may reasonably be required by the Trust and make same available to the Trust at the principal place of business of the Seller and, if the Records cannot be provided solely at such office, at such other offices of the Seller or its Affiliates where Records are kept, and permit the Trust, its agents or representatives, to examine and make copies, as reasonably requested, of such Records and (1B) permit the Trust or its agents to visit the offices and properties of the Seller and its Affiliates for the purpose of discussing matters relating to the Pool Assets and the Seller’s performance hereunder with any of the Seller’s officers or employees having knowledge of such matters, provided that the Trust shall defend act reasonably to minimize any disruption to the rightSeller in connection therewith; provided that prior to the occurrence of a Cash Reserve Event or a Trigger Event, title the Trust shall not be reimbursed for more than two such examinations in any year, if a Cash Reserve Event has occurred and is continuing, the Trust shall not be reimbursed for more than four such examinations in any year and, if a Trigger Event has occurred and is continuing, the Trust shall be reimbursed for all such examinations;
(d) at its expense, timely and fully perform and comply in all material respects with all material provisions, covenants and other obligations required to be observed, complied with or performed by the Seller under the Contracts relating to the Pool Assets;
(e) give the Trust at least 30 days’ prior written notice of any change in the address of its chief place of business and chief executive office, and written notice promptly after any change in the address of an office listed under the heading “Location of Records” in Schedule B, and each such notice shall be deemed to amend Schedule B accordingly;
(f) provide to the Trust not less than 30 days’ prior notice of any change in the name of the Seller as stated in its constating documents;
(g) co-operate with, and offer such assistance as may reasonably be requested by, the chartered accountants selected by the Trust to furnish reports in respect of the Trust, the Purchase and any Increase and the servicing of the Pool Assets under this Agreement, and furnish in respect of the preceding fiscal year, addressed to the Trust and such other Persons as the Trust may reasonably designate, a certificate of an officer who is familiar with this Agreement certifying that, to the knowledge of such officer, the Seller complied in such calendar year with its obligations hereunder except to the extent non-compliance therewith did not materially adversely affect the interest of Buyer the Trust and except as further set forth in such certificate;
(h) upon request of the Trust and with the Seller’s written consent, such consent not to be unreasonably withheld, request the Seller’s auditors to assist the Trust’s auditors to the Purchased Securities against, extent and take in such other action manner as is necessary reasonably required for the Trust’s auditors to remove, report on the Liens, security interests, claims and demands status of all Persons the Pool Assets under this Agreement;
(other than security interests by i) conduct Lot Checks of each Obligor in accordance with the Seller’s customary practices or through Buyer) and (2) shall take all action on such more frequent intervals as may be reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.Trust;
(cj) The Seller will permit Buyer, or any designated representative promptly after becoming aware thereof, to inspect such Seller’s records but in any event no later than two Business Days thereafter, provide the Trust with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If Servicer Termination Event that is continuing when the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect becomes aware thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(iik) Within 90 days after make or cause to be made all filings, recordings, and registrations and take all other actions in each jurisdiction necessary or appropriate to validate, preserve, perfect or protect the last day of its fiscal year, an audited statement co-ownership interests of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, Trust in the case of SEC filingsPool Assets, including the appropriate SEC accounting requirementsright to enforce the Related Security.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (KAR Auction Services, Inc.)
Affirmative Covenants of the Seller. From the date hereof until the Final Termination Date, the Seller covenants and agrees that it will, unless the Trust shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any material adverse change comply in all respects with all applicable laws, rules, regulations and orders with respect to it, its business operations and/or financial condition; providedand properties and all Pool Assets, however, that nothing in this Section 10 shall relieve such compliance to include paying before the same become delinquent all Taxes and Security Interests imposed upon the Seller of or its obligations under property in accordance with its normal policies with respect thereto, except to the Agreement.extent the same are contested in good faith and by appropriate proceedings or where failure to do so could not reasonably be expected to have a Material Adverse Effect;
(b) The preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified as an extra-provincial corporation or other out-of-jurisdiction corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect;
(c) at any time and from time to time during regular business hours, upon five Business Days’ prior written notice, subject to Section 10.9, (A) assemble such of the Records or copies thereof in its possession or control as may reasonably be required by the Trust and make same available to the Trust at the principal place of business of the Seller and, if the Records cannot be provided solely at such office, at such other offices of the Seller or its Affiliates where Records are kept, and permit the Trust, its agents or representatives, to examine and make copies, as reasonably requested, of such Records and (1B) permit the Trust or its agents to visit the offices and properties of the Seller and its Affiliates for the purpose of discussing matters relating to the Pool Assets and the Seller’s performance hereunder with any of the Seller’s officers or employees having knowledge of such matters, provided that the Trust shall defend act reasonably to minimize any disruption to the rightSeller in connection therewith; provided that prior to the occurrence of a Cash Reserve Event or a Trigger Event, title the Trust shall not be reimbursed for more than two such examinations in any year, if a Cash Reserve Event has occurred and is continuing, the Trust shall not be reimbursed for more than four such examinations in any year and, if a Trigger Event has occurred and is continuing, the Trust shall be reimbursed for all such examinations;
(d) at its expense, timely and fully perform and comply in all material respects with all material provisions, covenants and other obligations required to be observed, complied with or performed by the Seller under the Contracts relating to the Pool Assets;
(e) give the Trust at least 30 days’ prior written notice of any change in the address of its chief place of business and chief executive office, and written notice promptly after any change in the address of an office listed under the heading “Location of Records” in Schedule “B”, and each such notice shall be deemed to amend Schedule “B” accordingly;
(f) provide to the Trust not less than 30 days’ prior notice of any change in the name of the Seller as stated in its constating documents;
(g) co-operate with, and offer such assistance as may reasonably be requested by, the chartered accountants selected by the Trust to furnish reports in respect of the Trust, the Purchase and any Increase and the servicing of the Pool Assets under this Agreement, and furnish in respect of the preceding fiscal year, addressed to the Trust and such other Persons as the Trust may reasonably designate, a certificate of an officer who is familiar with this Agreement certifying that, to the knowledge of such officer, the Seller complied in such calendar year with its obligations hereunder except to the extent non-compliance therewith did not materially adversely affect the interest of Buyer the Trust and except as further set forth in such certificate;
(h) upon request of the Trust and with the Seller’s written consent, such consent not to be unreasonably withheld, request the Seller’s auditors to assist the Trust’s auditors to the Purchased Securities against, extent and take in such other action manner as is necessary reasonably required for the Trust’s auditors to remove, report on the Liens, security interests, claims and demands status of all Persons the Pool Assets under this Agreement;
(other than security interests by i) conduct Lot Checks of each Obligor in accordance with the Seller’s customary practices or through Buyer) and (2) shall take all action on such more frequent intervals as may be reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.Trust;
(cj) The Seller will permit Buyer, or any designated representative promptly after becoming aware thereof, to inspect such Seller’s records but in any event no later than two Business Days thereafter, provide the Trust with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If Servicer Termination Event that is continuing when the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect becomes aware thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(iik) Within 90 days after make or cause to be made all filings, recordings, and registrations and take all other actions in each jurisdiction necessary or appropriate to validate, preserve, perfect or protect the last day of its fiscal year, an audited statement co-ownership interests of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, Trust in the case of SEC filingsPool Assets, including the appropriate SEC accounting requirementsright to enforce the Related Security.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (KAR Auction Services, Inc.)
Affirmative Covenants of the Seller. From the date hereof until the Final Termination Date, the Seller covenants and agrees that it will, unless the Trust shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any material adverse change comply in all respects with all applicable laws, rules, regulations and orders with respect to it, its business operations and/or financial condition; providedand properties and all Pool Assets, however, that nothing in this Section 10 shall relieve such compliance to include paying before the same become delinquent all Taxes and Security Interests imposed upon the Seller of or its obligations under property in accordance with its normal policies with respect thereto, except to the Agreement.extent the same are contested in good faith and by appropriate proceedings or where failure to do so could not reasonably be expected to have a Material Adverse Effect;
(b) The Seller preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified as an extra-provincial corporation or other out-of-jurisdiction corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect;
(1c) shall defend at any time and from time to time during regular business hours, upon five Business Days' prior written notice, subject to Section 10.9, (A) assemble such of the right, title Records or copies thereof in its possession or control as may reasonably be required by the Trust and interest of Buyer in and make same available to the Purchased Securities againstTrust at the principal place of business of the Seller and, if the Records cannot be provided solely at such office, at such other offices of the Seller or its Affiliates where Records are kept, and take permit the Trust, its agents or representatives, to examine and make copies, as reasonably requested, of such Records and (B) permit the Trust or its agents to visit the offices and properties of the Seller and its Affiliates for the purpose of discussing matters relating to the Pool Assets and the Seller's performance hereunder with any of the Seller's officers or employees having knowledge of such matters, provided that the Trust shall act reasonably to minimize any disruption to the Seller in connection therewith; provided that prior to the occurrence of a Cash Reserve Event or a Trigger Event, the Trust shall not be reimbursed for more than two such examinations in any year, if a Cash Reserve Event has occurred and is continuing, the Trust shall not be reimbursed for more than four such examinations in any year and, if a Trigger Event has occurred and is continuing, the Trust shall be reimbursed for all such examinations;
(d) at its expense, timely and fully perform and comply in all material respects with all material provisions, covenants and other action obligations required to be observed, complied with or performed by the Seller under the Contracts relating to the Pool Assets;
(e) give the Trust at least 30 days' prior written notice of any change in the address of its chief place of business and chief executive office, and written notice promptly after any change in the address of an office listed under the heading "Location of Records" in Schedule "B", and each such notice shall be deemed to amend Schedule "B" accordingly;
(f) provide to the Trust not less than 30 days' prior notice of any change in the name of the Seller as stated in its constating documents;
(g) co-operate with, and offer such assistance as may reasonably be requested by, the chartered accountants selected by the Trust to furnish reports in respect of the Trust, the Purchase and any Increase and the servicing of the Pool Assets under this Agreement;
(h) upon request of the Trust and with the Seller's written consent, such consent not to be unreasonably withheld, request the Seller's auditors to assist the Trust's auditors to the extent and in such manner as is necessary reasonably required for the Trust's auditors to remove, report on the Liens, security interests, claims and demands status of all Persons the Pool Assets under this Agreement;
(other than security interests by i) conduct Lot Checks of each Obligor in accordance with the Seller's customary practices or through Buyer) and (2) shall take all action on such more frequent intervals as may be reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.Trust;
(cj) The Seller will permit Buyer, or any designated representative promptly after becoming aware thereof, to inspect such Seller’s records but in any event no later than two Business Days thereafter, provide the Trust with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If Servicer Termination Event that is continuing when the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect becomes aware thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(iik) Within 90 days after make or cause to be made all filings, recordings, and registrations and take all other actions in each jurisdiction necessary or appropriate to validate, preserve, perfect or protect the last day of its fiscal year, an audited statement co-ownership interests of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, Trust in the case of SEC filingsPool Assets, including the appropriate SEC accounting requirementsright to enforce the Related Security.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (KAR Auction Services, Inc.)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect, the Seller and the Subsidiary shall, except as specifically contemplated by this Agreement:
(a) The operate and conduct its business in the ordinary course;
(b) preserve intact its corporate existence, business organization, assets, licenses, permits, authorizations, Governmental Authorizations, Environmental Permits and business opportunities and retain the services of its present officers, employees and agents;
(c) comply with all contractual obligations applicable to its operations;
(d) maintain all of is assets in good repair, order and condition, reasonable wear and tear excepted, and maintain the insurance coverages described in SCHEDULE 2.20 or obtain comparable insurance coverages from reputable insurers which, in respect to amounts, types and risks insured, are consistent with the existing insurance coverages;
(e) in good faith and in a timely manner (i) cooperate with the Purchaser in satisfying the conditions in this Agreement, (ii) obtain as promptly as possible all consents, approvals, authorizations and rulings, whether regulatory, corporate or otherwise, as are necessary for the Purchaser and the Seller shall (or any of them) to carry out and consummate the transactions contemplated by this Agreement and continue the business of the Seller and the Subsidiary, (iii) furnish information concerning the Seller and the Subsidiary not previously provided to the Purchaser required for inclusion in any filings or applications that may be necessary in that regard and (iv) perform all acts and execute and deliver all documents necessary to cause the transactions contemplated by this Agreement to be con summated at the earliest possible date;
(f) comply in all material respects with all Legal Requirements applicable to it and the conduct of its business;
(g) promptly notify Buyer the Purchaser upon obtaining knowledge of any additional default, event of default or condition which with the passage of time or giving of notice would constitute an additional default or event of default under any of the Seller Loan Documents or Contracts and promptly notify and provide copies to the Purchaser of any material adverse written communications concerning such default;
(h) between the date of this Agreement and Closing, promptly give written notice to the Purchaser upon obtaining knowledge of any event or fact that would cause any of the representations or warranties of the Seller contained in or referred to in this Agreement to be untrue or misleading;
(i) deliver to the Purchaser a list (SCHEDULE 4.1(I)), dated as of the Closing Date, showing (i) the name of each bank or institution where the Seller and the Subsidiary has accounts or safe deposit boxes, (ii) the name(s) in which such accounts or boxes are held and (iii) the name of each Person authorized to draw thereon or have access thereto;
(j) deliver to the Purchaser a list (SCHEDULE 4.1(J)) certified by an officer of the Seller, dated as of the Closing Date, showing every Liability and obligation of the Seller and the Subsidiary, except arising in the ordinary course of its business, incurred after the date hereof;
(k) promptly notify the Purchaser of any change or inaccuracies in any data previously given or made available to the Purchaser pursuant to this Agreement;
(l) (without making or increasing any commitment which would be binding on the Seller or the Subsidiary) preserve the goodwill of, and its good relationships with, its suppliers, customers, landlords and others having business operations and/or financial conditionrelations with it;
(m) expeditiously cause the administrator of each of the Seller's and the Subsidiary's Benefit Plans to provide the Purchaser with all information that the Purchaser deems necessary or advisable with respect to such Benefit Plans; and
(n) subject to SECTION 5.2(D), remove, at their sole cost and expense, any underground storage tanks and related dispensing equipment or piping on or under any Property, and convey the Property free from the presence of any hazardous substance or petroleum substance in any concentration exceeding background levels associated with such underground tanks and related equipment, except as may be disclosed by the Seller to the Purchaser in writing prior to Closing. Prior to the Closing Date, the Seller and the Stockholders shall deliver to the Purchaser a report, prepared by an environmental consulting company and using a scope of work approved in advance by the Purchaser, which demonstrates to the Purchaser's satisfaction that the Seller and the Subsidiary have fulfilled the obligations under the preceding sentence and have obtained written evidence from any applicable Governmental Authority that the removal of all underground storage tanks has been completed and no further action is necessary to comply with any applicable Environmental Laws (the "CLOSURE LETTER") or specifying such further action necessary to comply with such laws. Any Phase I or Phase II Environmental Inspections (as hereinafter defined) conducted in connection with the foregoing shall be at the sole discretion of the Purchaser; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under (i) the Agreement.
(b) The Seller (1) shall defend the right, title costs and interest of Buyer in and to the Purchased Securities against, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit Buyer, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 expenses incurred in connection with any Phase I Environmental Inspections shall be the sole responsibility of the Purchased Securities Purchaser, and (ii) the costs and expenses incurred in connection with any Phase II Environmental Inspections shall be or become evidenced by any promissory noteborne equally between the Purchaser, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under on the Transaction pursuant to this Agreementone hand, and the documents delivered in connection herewith.
(f) If Seller and the Subsidiary, on the other hand; provided, further, that the costs of any amounts are soil or groundwater sampling required to perform the removal of underground storage tanks and related equipment or piping in compliance with applicable Environmental Laws and as necessary to obtain the Closure Letter shall be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer sole responsibility of the Seller has any knowledge of and the occurrence of any Event of Default or DefaultSubsidiary, subject to SECTION 5.2(D).
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Affirmative Covenants of the Seller. (a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; , provided, however, that nothing in this Section 10 12 shall relieve the Seller of its obligations under the pursuant to subsections (i), (j) and (k) hereunder or pursuant to any other Section of this Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 using its best efforts to obtain the Servicer's signature (if the Servicer's signature is necessary) and file such UCC financing statements as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Collateral without the prior express written consent of Buyer.
(e) Seller shall be notify Buyer immediately after obtaining actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered an Event of Default with respect to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithSeller.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Seller warrants and will defend the right, title and interest of Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingall Collateral against all adverse claims and demands.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities take all necessary action to maintain its status as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such yeara real estate investment trust.
(h) The With respect to Purchased Mortgage Loans subject to Transactions hereunder, Seller shall timely file all tax returns enter into hedge contracts with Nomura Securities International, Inc. ("NSI") or such other party reasonably acceptable to Buyer in an amount consistent with market practice to fully hedge, on a duration weighted basis, the related Purchase Price against changes in interest rates. If Seller has entered into hedge contracts with third parties, Seller shall deliver to Buyer on or prior to the related Purchase Date evidence satisfactory to Buyer that are required to be filed by them and shall timely pay all taxes due, 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 hedge contracts have been providedassigned to NSI. Seller shall enter into a Master Collateral Security and Netting Agreement for the purpose of cross-collateralizing the hedge contracts relating to such Purchased Mortgage Loans against the obligations of Seller hereunder.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Defaultmaintain tangible net worth (defined as net worth plus subordinated debt) in an amount not less than $40 million.
(j) All informationSeller shall maintain a debt to equity ratio no greater than 10 to 1, reports, exhibits, schedules, financial statements or certificates calculated by the market value of the Seller or any of its officers furnished to the Buyer hereunder and during the Seller's assets as determined in good faith by Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event Seller shall certify in writing to Buyer on a quarterly basis, commencing ninety (90) days from the date hereof, that Seller is in compliance with all of Default has been declared the financial covenants contained in this Agreement and any other agreement or deemed declared, instrument evidencing indebtedness of the Seller shall cooperate reasonably with the Buyerfor borrowed money in excess of $1,000,000.
Appears in 1 contract
Samples: Master Repurchase Agreement (Hanover Capital Mortgage Holdings Inc)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee and copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Collateral without the prior express written consent of Buyer.
(e) Seller shall be notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered an Event of Default with respect to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithSeller.
(f) If any amounts are required Seller covenants that each Purchased Mortgage Loan subject to this Agreement shall be withheld for U.S. federal income tax purposes serviced in accordance with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingSection 25 hereof.
(g) The Seller covenants to provide Buyer with a copy of any material changes to Seller's underwriting guidelines prior to the effectiveness of any such change. Buyer shall use commercially reasonable efforts to notify Seller within 7 Business Days of receipt of such changes if such changes are acceptable. If such changes are not acceptable to Buyer in its sole discretion, Buyer shall not be obligated to purchase Mortgage Loans hereunder that are originated in accordance with such changed underwriting guidelines.
(h) Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment against interest rate risks.
(i) Seller covenants to provide Buyer on the seventh Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions.
(j) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of its fiscal year, Guarantor's audited consolidated statements of income and balance sheets and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Price Xxxxxxxxxx XX or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 90 days after the last day of its fiscal year, Seller's audited consolidated statements of income and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Price Xxxxxxxxxx XX or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(iii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an Seller's unaudited statement consolidated statements of the Seller’s income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP;
(iiiv) Within 90 30 days after the last day of each calendar month, an officer's certificate from the chief financial officer or vice president of finance of Seller addressed to Buyer certifying that, as of such calendar month, (x) Seller is in compliance with all of the terms, conditions and requirements of this Agreement (such certification to include a calculation on a quarterly basis of the financial tests set forth in Sections 13(xiii) - (xviii)), and (y) no Event of Default exists;
(v) As soon as available, copies of all proxy statements, financial statements, and reports which Guarantor 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, which it files with the Securities and Exchange Commission or any government authority which may be substituted therefor, or with any national securities exchange
(vi) Within 45 days after the last day of each fiscal quarter in any fiscal year, an audited statement officer's certificate from the chief financial officer or vice president of finance of Guarantor addressed to Buyer certifying the Seller’s income calculation of Tangible Net Worth, including the valuation (and expenses for the assumptions used to derive such year valuation) of residual certificates, interest-only certificates and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and other comparable instruments with respect to which adequate reserves have been provided.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer securitizations of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, mortgage loans included in the case calculation of SEC filings, the appropriate SEC accounting requirementssuch Tangible Net Worth.
(k) If an Event Seller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, within two Business Days following written notice from Buyer, which as to a representation or warranty made by Seller set forth in Exhibit V hereto proves to be incorrect or untrue in any material respect.
(l) Seller covenants to provide Buyer, within seven Business Days following the execution thereof by the parties thereto, copies of Default has been declared each material agreement or deemed declaredinstrument entered into after the date of this Agreement by Guarantor, Seller or any of their respective subsidiaries with respect to indebtedness for borrowed money, certified by the chief financial officer or vice president of finance of Guarantor or Seller as being a true and correct copy of such agreement or instrument, as the case may be, and in full force and effect.
(m) In the event the Seller amends any of the Seller's other lending or financing facilities (including, without limitation, mortgage loan warehouse, residual financing, working capital or repurchase facilities) to incorporate new financial covenants or to modify existing financial covenants which modification makes such covenants more stringent than the financial covenants set forth in clauses (xii) through (xxi) of Section 13 hereof immediately prior to such modification, then the Seller shall cooperate reasonably simultaneously amend this Agreement to incorporate any such new or modified financial covenant. Seller shall notify Buyer in writing of any such proposed amendment (including together with the Buyersuch notice any draft amendment documentation) prior to entering into such amendment.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee and copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Collateral without the prior express written consent of Buyer.
(e) Seller shall be notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, (i) if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by an Event of Default with respect to Seller and (ii) of any promissory notechange if the Lockbox Bank, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under any change affecting the Transaction pursuant to this Agreement, distribution of any Income between the Lockbox Bank and the documents delivered in connection herewithCollection Account Bank.
(f) If any amounts are required Seller covenants that each Purchased Mortgage Loan subject to this Agreement shall be withheld for U.S. federal income tax purposes serviced in accordance with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingSection 25 hereof.
(g) The Seller covenants to provide Buyer with an advance copy of any proposed material changes to Seller's underwriting guidelines prior to the effectiveness of any such change. Buyer shall use commercially reasonable efforts to notify Seller within 7 Business Days of receipt of such notice of changes if such changes are acceptable. If such changes are not acceptable to Buyer in its sole discretion, Buyer shall not be obligated to purchase Mortgage Loans hereunder that are originated in accordance with such changed underwriting guidelines.
(h) Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, which has not been cured by the immediately following day, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment against interest rate risks.
(i) Seller covenants to provide Buyer on the seventh Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions.
(j) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of the first three fiscal quarters in any its fiscal year, an unaudited statement Guarantor's audited consolidated statements of the Seller’s income and expenses balance sheets and statements of changes in cash flow for such quarter year and assets and liabilities balance sheets as of the end of such quarteryear in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Ernst & andYoung LLP or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 90 days after the last day of its fiscal year, an Seller's audited statement consolidated statements of the Seller’s income and expenses for such year and assets and liabilities balance sheets as of the end of such year.year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Ernst & Young LLP or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(hiii) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes dueWithin 15 days after the last day of each calendar month in any fiscal year, except for any such taxes Seller's monthly report in substantially the form attached hereto as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided.Exhibit VIII;
(iiv) The Within 30 days after the last day of each calendar month, an officer's certificate from the chief financial officer or vice president of finance of Seller shall give notice addressed to the Buyer immediately after a responsible certifying that, as of such calendar month, (x) an officer of the Seller has any knowledge completed a review of Seller's activities under the terms of this Agreement, and based on such review Seller is in compliance with all of the occurrence terms, conditions and requirements of any this Agreement (such certification to include a calculation on a quarterly basis of the financial tests set forth in Sections 13(xiii) - (xviii)), and (y) no Event of Default exists, except as disclosed in such officer's certificate;
(v) As soon as available, copies of all proxy statements, financial statements, and reports which Guarantor 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, which it files with the Securities and Exchange Commission or Defaultany government authority which may be substituted therefor, or with any national securities exchange;
(vi) Within 45 days after the last day of each of the first three fiscal quarters and within 90 days after the last day of the fourth fiscal quarter in any fiscal year, an officer's certificate from the chief financial officer or vice president of finance of Guarantor addressed to Buyer certifying the calculation of Tangible Net Worth, including the valuation (and the assumptions used to derive such valuation) of residual certificates, interest-only certificates and other comparable instruments with respect to securitizations of mortgage loans included in the calculation of such Tangible Net Worth;
(vii) Within 3 days after entering into any hedging transactions described in subsection (h) above, evidence of such hedging transactions reasonably satisfactory to Buyer.
(jk) All informationSeller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, reportswithin two Business Days following written notice from Buyer, exhibitswhich as to a representation or warranty made by Seller set forth in Exhibit V hereto proves to be incorrect or untrue in any material respect.
(l) Seller covenants to notify in writing to Buyer, scheduleswithin seven Business Days following the execution thereof by the parties thereto, financial statements of each material agreement or certificates instrument entered into after the date of this Agreement by Guarantor, Seller or any of their respective subsidiaries with respect to indebtedness for borrowed money.
(m) The Seller shall (i) preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises; (ii) comply in all material respects with all Requirements of Laws (including, without limitation, all environmental laws and local, municipal, state or Federal ordinances, regulations or statutes regarding Predatory Lending Practices) and Contractual Obligations; and (iii) keep adequate records and books of account, in which complete entries will be made in accordance with GAAP consistently applied. 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.
(o) In the event that the Seller or any of its officers furnished Affiliates enters into a warehouse facility or other funding vehicle with any other Person (including, without limitation, a transaction with a new counterparty or a renewal of an existing relationship) that is structured utilizing a "true sale" of mortgage loans to a bankruptcy-remote non-consolidated special purpose entity ("SPE"), Buyer shall have the Buyer hereunder right to restructure the Agreement and during replace the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirementsa facility structured through an SPE.
(kp) If an Event In the event the Seller proposes to amend any of Default has been declared the Seller's other lending or deemed declaredfinancing facilities (including, without limitation, mortgage loan warehouse, residual financing, working capital or repurchase facilities) with other lenders, then the Seller shall cooperate reasonably with either (x) obtain the prior written approval of Buyer, which approval shall not be unreasonably withheld or (y) simultaneously amend this Agreement to incorporate any such new or modified term or provision.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.;
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee, copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved;
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerCollateral, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If any amount payable under or in connection with any of the Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.;
(fd) If Seller shall notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any amounts are required to be withheld for U.S. federal income tax purposes event has occurred that constitutes an Event of Default with respect to Seller or any payments to Buyer in connection event that with the Transaction effected by this Agreementgiving of notice or lapse of time, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer or both, would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day become an Event of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and Default with respect to which adequate reserves have been provided.Seller;
(ie) The In the event Seller shall give notice to the sells Buyer immediately after Mortgage Loans in a responsible officer of the Transaction hereunder, Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant covenants that each Mortgage Loan subject to this Agreement shall be prepared serviced by an approved seller/servicer in accordance good standing with GAAPFNMA, FHLMC or GNMA, as applicable;
(f) Seller covenants to provide Buyer with a copy of any changes to Seller's underwriting guidelines prior to the effectiveness of any such change;
(g) [reserved]
(h) Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the case reasonable judgment of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.Buyer against interest rate risks;
Appears in 1 contract
Samples: Master Repurchase Agreement (American Residential Investment Trust Inc)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller (1) shall defend provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the righttruthfulness of the representations set forth in Section 10 and in Section 2 of the Guarantor Agreement, title and interest including but not limited to resolutions evidencing the approval of Buyer in and to this Agreement by the Purchased Securities againstboard of trustees of Seller and/or Guarantor, and take such other action as is necessary to removethe Transactions contemplated hereby.
(c) Seller shall, the Liensat Buyer's request, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject Student Loans as and to the Transaction extent set forth in Section 6, the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit Buyer, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities Repurchase Trust Agreement and the conduct and operation of its business related thereto upon reasonable prior written notice from BuyerFleet AMS Trust Agreement, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 or other instruments as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Student Loans or its beneficial interest therein (other than the security interests described in Section 6) without the prior express written consent of Buyer. Seller shall be notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced of Event of Default with respect to Seller.
(e) Seller covenants to use its best efforts to provide Buyer on or before the 15th Business Day of each month but in no event later than the 20th Business Day of each month with respect to Purchased Student Loans, either by direct modem electronic transmission, a computer diskette or any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered format agreed to by Buyer, duly endorsed in a manner satisfactory the Computer Tape with respect to Buyer, all Purchased Student Loans then subject to be held Transactions including data as a Purchased Security under mutually agreed upon by the Transaction pursuant to this Agreement, Seller and the documents delivered in connection herewithBuyer.
(f) If any amounts are required Seller covenants to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 within 90 days after the last day of its fiscal year, each of Guarantor's and Seller's audited consolidated and consolidating statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of a firm of "Big Six" independent certified public accountants or any other nationally recognized independent certified public accounting firm consented to by Buyer (with consent shall not be unreasonably withheld);
(ii) within 60 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement each of the Guarantor's and Seller’s 's consolidated and consolidating statements of income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP;
(iiiii) Within 90 within 30 days after the last day of its fiscal yeareach calendar month, an audited statement officer's certificate from the chief financial officer or treasurer of the Seller’s income and expenses for such year and assets and liabilities Seller addressed to Buyer certifying that, as of such calendar month, (x) Seller is in compliance with all of the end terms, conditions and requirements of this Agreement, and (y) no Event of Default exists;
(iv) within 30 days after the last day of each calendar month, notice of all audits of or any other actions of a material nature by the DOE with respect to, Seller or any Affiliate thereof or, to the extent it has knowledge thereof, of any Servicer or guarantor (including but not limited to XXXX or, with respect to the TuitionGuard Loans GNIC) under any Guaranty Agreement, and, in each case, notice of the results thereof (including, with respect to guarantors of the Purchased Federal Student Loans, but not limited to, the rate of reimbursement by the DOE for the guarantor under a Guaranty Agreement, to the extent that such yearrate is below the maximum permitted under the Higher Education Act (i.e., 98% with respect to Student Loans disbursed on or after October 1, 1993 and 100% for loans disbursed prior thereto));
(v) as promptly as practicable, copies of all reports or written comments (including, without limitation, audit reports, management letters and any other reports or communications with respect to the internal control structure) relating to Seller or the Guarantor submitted by its independent accountants;
(vi) not later than 11:00 a.m., New York City time, on the Business Day after Seller becomes aware thereof, a report setting forth any material changes or developments in the business of Seller, including, without limitation, any material changes, developments or defaults under any agreements;
(vii) as promptly as practicable (but in any event not later than three (3) Business Days after filing), copies of all materials filed with respect to the Guarantor with the Securities and Exchange Commission; and
(viii) such other information as, from time to time, may reasonably be requested by the Buyer.
(g) Seller and Guarantor shall each do all things necessary to remain duly formed or incorporated, validly existing and in good standing as a corporation, in its jurisdiction and maintain all requisite authority to conduct its business in each jurisdiction in which it conducts business.
(h) The Seller and Guarantor shall timely file each comply with the requirements of all tax returns that are required to be filed by them applicable laws, statutes, rules, regulations and shall timely pay orders of, and all taxes dueapplicable restrictions imposed by, all governmental authorities having jurisdiction over its operations in respect of the conduct of its business and the ownership of its property, except for in the case of Guarantor where failure to do so would not have a material adverse effect on its business or operations or on its ability to perform its obligations under the Guarantor Agreement; provided, however, that it shall not be required by reason of this Section 12(h) to comply therewith at any such taxes as are being appropriately contested time while it shall be contesting its obligation to do so in good faith by appropriate proceedings diligently conducted proceedings, and if it shall have set aside such reserves, if any, with respect to which adequate reserves have been providedthereto as are required by GAAP.
(i) The Seller shall give notice not permit the Purchased Student Loans to contain (i) any Federal Student Loan which is more than 120 days delinquent, (ii) any Private Student Loan which is more than 90 days delinquent, (iii) more than 5% by aggregate Purchase Price of Student Loans that are more than 30 days delinquent, (iv) more than 2.5% by aggregate Purchase Price of Student Loans that are more than 60 days delinquent, (v) any Federal Student Loan as to which the Buyer immediately after a responsible officer applicable federal guarantor's obligation to make guaranty payments or the federal reinsurance with respect thereto has for any reason been forfeited or qualified, (vi) any XXXX Loan as to which the obligation of XXXX to make guaranty payments under the XXXX Guaranty Agreement has for any reason been forfeited or qualified, (vii) any TuitionGuard Loan as to which the insurance obligation of GNIC has for any reason been withdrawn or reduced or (viii) more than 0% by aggregate Purchase Price of Student Loans that are Private Student Loans. Seller has any knowledge of the occurrence of any Event of Default will deliver Additional Student Loans or DefaultSubstitute Student Loans as may be necessary to comply with this paragraph.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact shall take all actions necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller ensure that each Federal Student Loan is subject to the Buyer pursuant a Guaranty Agreement and that each Private Student Loan is subject to this Agreement shall be prepared in accordance with GAAPa XXXX Guaranty Agreement, or as applicable, in the case of SEC filingsa TuitionGuard Loan, is insured by GNIC for at least 95% the appropriate SEC accounting requirementsprincipal and interest due on the loan in the event of a default thereon.
(k) If an Event of Default has been declared or deemed declaredWhile any Transaction is outstanding, the Seller hereby agrees to cause the related Servicer to hold the related Purchased Student Loans for the benefit of the Buyer. The Portfolio Identifier pursuant to which each Servicer holds the related Student Loans shall cooperate reasonably with be as set forth on Exhibit IV hereto. The Seller shall not cause the related Servicer to, and the related Servicer shall not change the Portfolio Identifier any Student Loan is held under without the prior consent of the Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (Uici)
Affirmative Covenants of the Seller. Except as otherwise contemplated by this Agreement, between the date hereof and the Closing, unless the Purchaser otherwise agree in writing (which agreement shall not be unreasonably conditioned, withheld or delayed), the Seller shall:
(a) The Seller shall promptly notify Buyer except with respect to (i) distributions to the Shareholders of any material adverse change cash on hand and (ii) the elimination of certain intercompany or Affiliate accounts as provided elsewhere herein, use commercially reasonable efforts to (x) conduct its Business and operations only in the Ordinary Course of Business, (y) keep its Business and properties intact, including its present business operations and/or financial condition; providedoperations, howeverphysical facilities, that nothing in this Section 10 shall relieve Inventory levels (consistent with seasonal fluctuations), and (z) maintain the Seller ordinary and customary relationships of the Business with its obligations under the Agreement.lessors, licensors, suppliers, vendors, customers, and others having business relations with it;
(b) The Seller (1) shall defend maintain the rightLeased Real Property and other assets in their current state of repair, title and interest of Buyer in and to the Purchased Securities againstorder, and take such other action as is necessary to remove, the Liens, security interests, claims condition (normal wear and demands of all Persons (other than security interests by or through Buyertear excepted and consistent with age) consistent with current needs and (2) shall take all action reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest replace in the Purchased Securities subject to Ordinary Course of Business its inoperable, worn out, or obsolete assets with assets consistent with past practice, and notify the Transaction in Purchaser promptly of any notice received from the event landlord under the Transaction is recharacterized as a secured financing.Real Property Lease or;
(c) The Seller will permit Buyerpromptly upon obtaining knowledge thereof, inform the Purchaser in writing of any material breach from the representations and warranties contained in Article V or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts material breach of any and all thereof.covenant hereunder by the Seller;
(d) If use commercially reasonable efforts to cause the Seller shall at any time become entitled conditions to receive or shall receive any rightsthe Parties’ obligations to consummate the transactions contemplated hereby to be satisfied (including, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereofwithout limitation, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer execution and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank delivery of all agreements contemplated hereunder to be held by Buyer hereunder as additional collateral security for so executed and delivered and the Transaction. If any sums making and obtaining of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Sellerall third party and governmental notices, the Seller shall promptly deliver such amounts to the Buyer.filings, authorizations, approvals, consents, releases, and terminations);
(e) At any time from time cooperate with the Purchaser to time upon prior written request of Buyerpermit the Purchaser and its employees, agents, accounting, legal, and other authorized representatives, at the sole Purchaser’s expense and upon 24 hours prior notice, to (i) have reasonable access to the premises, books, and records during normal business hours, (ii) visit and inspect any of the properties, and (iii) discuss its affairs, finances, and accounts with its directors and officers, managers, key employees, customers, sales representatives, suppliers and independent accountants, provided that such access does not unreasonably interfere with the operations of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.; and
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with provide such information on the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day names of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income customers, vendors and expenses for such quarter contractors, with dollar amounts of sales and assets purchases, and liabilities terms of business and contracts, as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such yearreasonably requested by Purchaser.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Affirmative Covenants of the Seller. From the date hereof until the Collection Date, unless the Servicing Agent shall otherwise consent in writing, the Seller will:
(a) The Seller shall promptly notify Buyer Comply in all material respects with all applicable laws, rules, regulations and orders (including all material provisions of any material adverse change in ERISA) with respect to it, its business operations and/or financial condition; providedand properties, however, that nothing in this Section 10 shall relieve including the Seller of Bondable Conservation Investments and the Conservation Investment Assets if failure to comply would materially adversely affect its ability to perform its obligations under this Agreement or the AgreementConservation Bond or the collectibility of the Conservation Investment Assets.
(b) Preserve and maintain its corporate existence, in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified could materially adversely affect its ability to perform its obligations under this Agreement or the Conservation Bond or the collectibility of the Conservation Investment Assets. Nothing herein shall prevent the merger, consolidation or sale of all or substantially all of the assets and business of the Seller, provided that any corporation or other entity (i) into which the Seller may be merged or consolidated, (ii) which may result from any merger, conversion or consolidation to which the Seller shall be a party and in which the Seller is not the surviving entity, or (iii) which may succeed to all or substantially all of the business of the Seller, shall execute an agreement of assumption to perform every obligation of the Seller hereunder in which event such corporation or entity shall be the successor to the Seller hereunder without the execution or filing of any document or any further act by any of the parties to this Agreement. The Seller (1) shall defend the rightgive prompt notice of any such merger, title and interest of Buyer in and consolidation or sale to the Purchased Securities against, Purchaser and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financingServicing Agent.
(c) The Seller will At any reasonable time, permit Buyerthe Purchaser or its agents or representatives, or any designated representative thereofat their expense, to inspect such Seller’s visit its offices in order to examine its books of account and other records and files relating to the Conservation Investment Assets (including, without limitation, computer tapes and disks) and to discuss with its officers and employees its business, finances and accounts with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereofthereto.
(d) If At its expense timely and fully perform and comply with all terms and provisions required to be observed by it under the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereofFinancing Order, the Seller shall accept the same as Buyer’s agentTariff and any Revised Tariff, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 thingswithout limitation, filing such UCC financing statements as Buyer may reasonably request). If any amount payable under or making all necessary filings required of it in connection with Rate Revisions and other changes in Rates to the extent permitted or required pursuant to the Financing Order, provided, that any such Rate Revisions or other change to Rates shall not modify the Scheduled Payment Amount of the Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithConservation Bond.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Conservation Bond Purchase Agreement (Enron Corp/Or/)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller’s board of directors or loan committee and copies of the minutes of the meetings of Seller’s board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer’s request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request).
(d) 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. If Seller agrees that upon reasonable prior notice to 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 amount payable and all documents, records, agreements, instruments or information relating to the Mortgage Loans in the possession, or under or the control, of Seller. Seller shall reimburse Buyer for any and all out-of-pocket costs and expenses reasonably incurred by Buyer and its designees in connection with any of the Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction ’s on-going due diligence and auditing activities pursuant to this AgreementSection 12(d).
(e) Seller shall notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, (i) if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become an Event of Default with respect to Seller and (ii) of any change if the Lockbox Bank, or any change affecting the distribution of any Income between the Lockbox Bank and the documents delivered in connection herewithCollection Account Bank.
(f) If any amounts are required Seller covenants that each Purchased Mortgage Loan subject to this Agreement shall be withheld for U.S. federal income tax purposes serviced in accordance with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingSection 26 hereof.
(g) The Seller covenants to provide Buyer with an advance copy of any proposed material changes to Seller’s Underwriting Guidelines prior to the effectiveness of any such change. Buyer shall use commercially reasonable efforts to notify Seller within 7 Business Days of receipt of such notice of changes if such changes are acceptable. If such changes are not acceptable to Buyer in its sole discretion, Buyer shall not be obligated to purchase Mortgage Loans hereunder that are originated in accordance with such changed Underwriting Guidelines.
(h) Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, which has not been cured by the immediately following day, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment against interest rate risks.
(i) Seller shall provide Buyer on each Purchase Date (with respect to Mortgage Loan purchased on such date) and by no later than the seventh (7th) 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 Mortgage Loans and any additional reports as Buyer may reasonably request with respect to the Mortgage Loans.
(j) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 90 days after the last day of its fiscal year, AIC’s audited consolidated statements of income and balance sheets and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Ernst & Young LLP or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 90 days after the last day of its fiscal year, AIC’s audited consolidated statements of income and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Ernst & Young LLP or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(iii) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an AIC’s unaudited statement consolidated statements of the Seller’s income and expenses balance sheets and statements of changes in cash flow for such quarter year and assets and liabilities balance sheets as of the end of such quarter; andquarter in each case certified by a Responsible Officer as fairly presenting the consolidated financial position of AIC and AIC’s Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP;
(iiiv) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, ACC’s unaudited consolidated statements of income and balance sheets and statements of changes in cash flow for such year and balance sheets as of the end of such quarter in each case certified by a Responsible Officer as fairly presenting the consolidated financial position of ACC and ACC’s Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP;
(v) [Reserved]
(vi) Within 30 days after the last day of each calendar month, in any fiscal year, Seller’s monthly report in substantially the form attached hereto as Exhibit VIII;
(vii) As soon as available, copies of all proxy statements, financial statements, and reports which AIC 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, which it files with the Securities and Exchange Commission or any government authority which may be substituted therefor, or with any national securities exchange;
(viii) Within 45 days after the last day of each of the first three fiscal quarters and within 90 days after the last day of its the fourth fiscal quarter in any fiscal year, an audited statement officer’s certificate from the chief financial officer or vice president of finance of AIC addressed to Buyer certifying the Seller’s income calculation of Tangible Net Worth, including the valuation (and expenses for the assumptions used to derive such year valuation) of residual certificates, interest-only certificates and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and other comparable instruments with respect to which adequate reserves have been provided.securitizations of mortgage loans included in the calculation of such Tangible Net Worth;
(iix) The Within 45 days after the last day of each of the first three fiscal quarters and within 90 days after the last day of the fourth fiscal quarter in any fiscal year, an officer’s certificate from the chief financial officer or vice president of finance of Seller shall give notice addressed to the Buyer immediately after a responsible certifying that, as of such fiscal quarter, (x) an officer of the Seller has any knowledge completed a review of Seller’s activities under the terms of this Agreement, and based on such review Seller is in compliance with all of the occurrence terms, conditions and requirements of any this Agreement (such certification to include a calculation on a quarterly basis of the financial tests set forth in Sections 13(xii) – (xviii)), and (y) no Event of Default or Defaultexists, except as disclosed in such officer’s certificate;
(x) Within 3 days after entering into any hedging transactions described in subsection (h) above, evidence of such hedging transactions reasonably satisfactory to Buyer.
(jk) All informationSeller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, reportswithin two Business Days following written notice from Buyer, exhibitswhich as to a representation or warranty made by Seller set forth in Exhibit V hereto proves to be incorrect or untrue in any material respect.
(l) Each Seller covenants to notify in writing to Buyer, scheduleswithin seven Business Days following the execution thereof by the parties thereto, financial statements of each material agreement or certificates instrument entered into after the date of this Agreement by Seller or any of its Subsidiaries with respect to indebtedness for borrowed money.
(m) Each Seller shall (i) preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises; (ii) comply in all material respects with all Requirements of Laws (including, without limitation, all environmental laws and local, municipal, state or Federal ordinances, regulations or statutes regarding Predatory Lending Practices) and Contractual Obligations; and (iii) keep adequate records and books of account, in which complete entries will be made in accordance with GAAP consistently applied. 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.
(n) In the event that the Seller or any of its officers furnished Affiliates enters into a warehouse facility or other funding vehicle with any other Person (including, without limitation, a transaction with a new counterparty or a renewal of an existing relationship) that is structured utilizing a “true sale” of mortgage loans to a bankruptcy-remote non-consolidated special purpose entity (“SPE”), Buyer shall have the right to restructure the Agreement and replace the Agreement with a facility structured through an SPE.
(o) In the event the Seller proposes to amend any material economic or financial terms of any of the Seller’s other lending or financing facilities (including, without limitation, mortgage loan warehouse, residual financing, working capital or repurchase facilities) with other lenders, then the Seller shall notify the Buyer hereunder of such amendment.
(p) Seller shall maintain insurance with financially sound and during reputable insurance companies, and with respect to property and risks of a character usually maintained by entities engaged in the Buyer’s diligence same or similar business similarly situated, against loss, damage and liability of the kinds and in the amounts customarily maintained by such entities. In addition, Seller is shall obtain and will 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.
(q) Seller shall give notice to Buyer, immediately upon (and in any event not more than one Business Day after) Seller obtaining notice thereof, of
(i) the occurrence of any default or Event of Default on the part of Seller;
(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 true and complete and not fail expected to disclose have a material adverse effect;
(iii) with respect to any Purchased Mortgage Loan, if Seller acquires knowledge that the Mortgaged Property violates environmental law or has been materially damaged so as to affect adversely the value as collateral of such Mortgage Loan; and
(iv) any representation or warranty as to any Purchased Mortgage Loan (as set forth in Exhibit V) becomes incorrect or untrue in any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleadingrespect. All required financial statements delivered by the Seller to the Buyer Each notice pursuant to this Agreement Section shall be prepared in accordance accompanied by a statement of a Responsible Officer of Seller setting forth details of the occurrence referred to therein and stating what action Seller has taken or proposes to take with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirementsrespect thereto.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Investment Corp)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller (1) shall defend provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the righttruthfulness of the representations set forth in Section 10 and in Section 2 of the Guarantor Agreement, title and interest including but not limited to resolutions evidencing the approval of Buyer in and to this Agreement by the Purchased Securities againstboard of trustees of Seller and/or Guarantor, and take such other action as is necessary to removethe Transactions contemplated hereby.
(c) Seller shall, the Liensat Buyer's request, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject Student Loans as and to the Transaction extent set forth in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit Buyer, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities Section 6 and the conduct and operation of its business related thereto upon reasonable prior written notice from BuyerRepurchase Trust Agreement, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 or other instruments as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Student Loans or its beneficial interest therein (other than the security interest described in Section 6) without the prior express written consent of Buyer. Seller shall be notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced an Event of Default with respect to Seller.
(e) Seller covenants to provide Buyer on or before the 15th day of each month with respect to Purchased Student Loans, either by direct modem electronic transmission, a computer diskette or any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered format agreed to by Buyer, duly endorsed in a manner satisfactory the Computer Tape with respect to Buyer, all Purchased Student Loans then subject to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithTransactions.
(f) If any amounts are required Seller covenants to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 within 90 days after the last day of its fiscal year, each of Guarantor's and Seller's audited consolidated and consolidating statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of a firm of "Big Six" independent certified public accountants or any other nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) within 60 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement each of the Guarantor's and Seller’s 's consolidated and consolidating statements of income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP;
(iiiii) Within 90 within 30 days after the last day of its fiscal yeareach calendar month, an audited statement officer's certificate from the chief financial officer or treasurer of the Seller’s income and expenses for such year and assets and liabilities Seller addressed to Buyer certifying that, as of such calendar month, (x) Seller is in compliance with all of the end terms, conditions and requirements of this Agreement, and (y) no Event of Default exists;
(iv) within 30 days after the last day of each calendar month, notice of all DOE audits of or any other actions of a material nature by the DOE with respect to, Seller or any Affiliate thereof or, to the extent it has knowledge thereof, of any Servicer or guarantor (including but not limited to TERI) xxder any Guaranty Agreement, and, in each case, notice of the results thereof (including, with respect to guarantors of the Purchased Federal Student Loans, but not limited to, the rate of reimbursement by the DOE for the guarantor under a Guaranty Agreement, to the extent that such yearrate is below the maximum permitted under the Higher Education Act (i.e., 98% with respect to Student Loans disbursed on or after October 1, 1993 and 100% for loans disbursed prior thereto));
(v) as promptly as practicable, copies of all reports or written comments (including, without limitation, audit reports, management letters and any other reports or communications with respect to the internal control structure) relating to Seller or the Guarantor submitted by its independent accountants;
(vi) not later than 11:00 a.m., New York City time, on the Business Day after Seller becomes aware thereof, a report setting forth any material changes or developments in the business of Seller, including, without limitation, any material changes, developments or defaults under any agreements;
(vii) as promptly as practicable (but in any event not later than three (3) Business Days after filing), copies of all materials filed with respect to the Guarantor with the Securities and Exchange Commission; and
(viii) such other information as, from time to time, may reasonably be requested by the Buyer.
(g) Seller and Guarantor shall each do all things necessary to remain duly formed or incorporated, validly existing and in good standing as a partnership or corporation, respectively, in its jurisdiction and maintain all requisite authority to conduct its business in each jurisdiction in which it conducts business; provided, that, Seller may merge, consolidate or otherwise reorganize with or into an Affiliate for the purpose of converting to corporate form, so long as Seller as constituted in such form shall have equity and a market value of at least that of the Seller as a partnership immediately prior to such conversion, and as a corporation, Seller shall continue otherwise to comply with this subparagraph.
(h) The Seller and Guarantor shall timely file each comply with the requirements of all tax returns that are required to be filed by them applicable laws, statutes, rules, regulations and shall timely pay orders of, and all taxes dueapplicable restrictions imposed by, all governmental authorities having jurisdiction over its operations in respect of the conduct of its business and the ownership of its property, except for in the case of Guarantor where failure to do so would not have a material adverse effect on its business or operations or on its ability to perform its obligations under the Guarantor Agreement; provided, however, that it shall not be required by reason of this Section 12(h) to comply therewith at any such taxes as are being appropriately contested time while it shall be contesting its obligation to do so in good faith by appropriate proceedings diligently conducted proceedings, and if it shall have set aside such reserves, if any, with respect to which adequate reserves have been providedthereto as are required by GAAP.
(i) The Seller shall give notice not permit the Purchased Student Loans to contain (i) any Federal Student Loan which is more than 120 days delinquent, (ii) any Private Student Loan which is more than 90 days delinquent, (iii) more than 5% by aggregate Purchase Price of Student Loans that are more than 30 days delinquent, (iv) more than 2.5% by aggregate Purchase Price of Student Loans that are more than 60 days delinquent, (v) any Federal Student Loan as to which the Buyer immediately after a responsible officer applicable federal guarantor's obligation to make guaranty payments or the federal reinsurance with respect thereto has for any reason been forfeited or qualified, or (vi) any Private Student Loan as to which the obligation of TERI xx make guaranty payments under the TERI Xxxranty Agreement has for any reason been forfeited or qualified. Seller has any knowledge of the occurrence of any Event of Default will deliver Additional Student Loans or DefaultSubstitute Student Loans as may be necessary to comply with this paragraph.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact shall take all actions necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller ensure that each Federal Student Loan is subject to the Buyer pursuant a Guaranty Agreement and that each Private Student Loan is subject to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirementsa TERI Xxxranty Agreement.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (Uici)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee and copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Collateral without the prior express written consent of Buyer.
(e) Seller shall be notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, (i) if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by an Event of Default with respect to Seller and (ii) of any promissory notechange if the Lockbox Bank, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under any change affecting the Transaction pursuant to this Agreement, distribution of any income between the Lockbox Bank and the documents delivered in connection herewithCollection Account Bank.
(f) If any amounts are required Seller covenants that each Purchased Mortgage Loan subject to this Agreement shall be withheld for U.S. federal income tax purposes serviced in accordance with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingSection 25 hereof.
(g) The Seller covenants to provide Buyer with an advance copy of any proposed material changes to Seller's underwriting guidelines prior to the effectiveness of any such change. Buyer shall use commercially reasonable efforts to notify Seller within 7 Business Days of receipt of such notice of changes if such changes are acceptable. If such changes are not acceptable to Buyer in its sole discretion, Buyer shall not be obligated to purchase Mortgage Loans hereunder that are originated in accordance with such changed underwriting guidelines.
(h) Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment against interest rate risks.
(i) Seller covenants to provide Buyer on the seventh Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions.
(j) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of the first three fiscal quarters in any its fiscal year, an unaudited statement Guarantor's audited consolidated statements of the Seller’s income and expenses balance sheets and statements of changes in cash flow for such quarter year and assets and liabilities balance sheets as of the end of such quarter; andyear in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Ernst & Young LLP or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 90 days after the last day of its fiscal year, an Seller's audited statement consolidated statements of the Seller’s income and expenses for such year and assets and liabilities balance sheets as of the end of such year.year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Ernst & Young LLP or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(hiii) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes dueWithin [15] days after the last day of each calendar month in any fiscal year, except for any such taxes Seller's monthly report in substantially the form attached hereto as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided.Exhibit VII;
(iiv) The Within 30 days after the last day of each calendar month, an officer's certificate from the chief financial officer or vice president of finance of Seller shall give notice addressed to the Buyer immediately after a responsible certifying that, as of such calendar month, (x) an officer of the Seller has any knowledge completed a review of Seller's activities under the terms of this Agreement, and based on such review Seller is in compliance with all of the occurrence terms, conditions and requirements of any this Agreement (such certification to include a calculation on a quarterly basis of the financial tests set forth in Sections 13(xiii) - (xviii)), and (y) no Event of Default or Default.exists, except as disclosed in such officer's certificate;
(jv) All informationAs soon as available, copies of all proxy statements, financial statements, and reports which Guarantor sends to its stockholders, and copies of all regular, periodic and special reports, exhibitsand all registration statements under the Securities Act of 1933, schedulesas amended, financial statements or certificates of which it files with the Seller Securities and Exchange Commission or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will government authority which may be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAPsubstituted therefor, or as applicablewith any national securities exchange;
(vi) Within 45 days after the last day of each fiscal quarter in any fiscal year, an officer's certificate from the chief financial officer or vice president of finance of Guarantor addressed to Buyer certifying the calculation of Tangible Net Worth, including the valuation (and the assumptions used to derive such valuation) of residual certificates, interest-only certificates and other comparable instruments with respect to securitizations of mortgage loans included in the case calculation of SEC filingssuch Tangible Net Worth;
(vii) Within 3 days after entering into any hedging transactions described in subsection (h) above, evidence of such hedging transactions reasonably satisfactory to Buyer;
(viii) Within 3 days after the appropriate SEC accounting requirementsrenewal of any fidelity insurance and errors omissions insurance policy that identifies Buyer as a co-insured, evidence of such renewal reasonably satisfactory to Buyer.
(k) If an Event Seller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, within two Business Days following written notice from Buyer, which as to a representation or warranty made by Seller set forth in Exhibit V hereto proves to be incorrect or untrue in any material respect.
(l) Seller covenants to provide Buyer, within seven Business Days following the execution thereof by the parties thereto, copies of Default has been declared each material agreement or deemed declaredinstrument entered into after the date of this Agreement by Guarantor, Seller or any of their respective subsidiaries with respect to indebtedness for borrowed money, certified by the chief financial officer or vice president of finance of Guarantor or Seller as being a true and correct copy of such agreement or instrument, as the case may be, and in full force and effect.
(m) In the event the Seller amends any of the Seller's other lending or financing facilities (including, without limitation, mortgage loan warehouse, residual financing, working capital or repurchase facilities) to incorporate new financial covenants or to modify existing financial covenants which modification makes such covenants more stringent than the financial covenants set forth in clauses (xii) through (xxi) of Section 13 hereof immediately prior to such modification, then the Seller shall cooperate reasonably simultaneously amend this Agreement to incorporate any such new or modified financial covenant. Seller shall notify Buyer in writing of any such proposed amendment (including together with such notice any draft amendment documentation) prior to entering into such amendment.
(n) The Seller shall (i) preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises; (ii) comply in all material respects with all Requirements of Laws (including, without limitation, all environmental laws and local, municipal, state or Federal ordinances, regulations or statutes regarding Predatory Lending Practices) and Contractual Obligations; and (iii) keep adequate records and books of account, in which complete entries will be made in accordance with GAAP consistently applied. 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 Buyerrequirements 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.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
Affirmative Covenants of the Seller. From the date hereof until the first day following the Commitment Termination Date on which (i) the Aggregate Undivided Interest shall be reduced to zero and (ii) all Obligations shall have been finally paid and performed, the Seller shall do all of the following unless the Agent (acting upon the direction of the Required Purchasers) shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any comply with all applicable laws, rules, regulations and orders that are material adverse change to it, including but not limited to all applicable laws, rules, regulations and orders with respect to the Assigned Collateral and will take all actions necessary to ensure that all Taxes, pension obligations and other governmental claims in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller respect of its obligations under the Agreementoperations, business and assets are promptly paid when due.
(b) The Seller (1) shall defend preserve and maintain its corporate existence, rights, franchises and privileges in the right, title and interest State of Buyer in and to the Purchased Securities againstNevada, and take qualify and remain qualified in good standing as a foreign corporation in each State where such other action as qualification is necessary to removeor advisable in view of its operations, the Liens, security interests, claims business and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financingassets.
(c) The Seller will permit BuyerFrom time to time during regular business hours, or any designated representative thereofafter receipt of at least three days, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyerthe Agent or the related Purchaser, or the Seller shall permit the Agent, any designated representative thereof, at such reasonable times Purchaser and with reasonable frequency, their respective agents and representatives (i) to examine and make copies of extracts and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under the control of the Seller and (ii) to visit the offices and properties of the Seller for the purpose of examining such materials and to discuss matters relating to the Receivables, its performance under any Facility Document to which the Seller is a party or its affairs, finances and all thereofaccounts generally with any of its officers, directors or employees.
(d) If The Seller shall maintain and implement or cause to be maintained and implemented administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Receivables and the Receivable Documents in the event of the destruction of the originals thereof), and keep and maintain or cause to be kept and maintained (i) all documents, books, records and other information reasonably necessary or advisable for the collection of the Receivables (including, without limitation, records adequate to permit the daily identification of each new receivable and all Collections of and adjustments to each existing Receivable) and (ii) adequate records and books of account in which complete entries will be made in accordance with generally accepted accounting principles, consistently applied, reflecting all financial transactions of the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums (except that transfers of money or property so paid or distributed in respect Receivables regardless of the Purchased Securities shall date of transfer may be received by accounted for in accordance with the Sellerrules in effect prior to January 1, the Seller shall promptly deliver such amounts to the Buyer1997).
(e) At any time from time to time upon The Seller shall (i) keep its principal place of business and its chief executive office at the address set forth in Section 15.5 unless it shall have provided 60 days' prior written request notice of Buyerany intended move to the Agent, at (ii) maintain a fiscal year ending on December 31 and shall not make any significant change-in accounting policies or reporting practices other than changes required by generally accepted accounting principles or otherwise required by law and (iii) comply in all material respects with the sole expense of the Seller, the Seller will promptly Credit 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 Collection Policy in connection with any of the Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreementeach Receivable, and the documents delivered in connection herewitheach Receivable Document related thereto.
(f) If The Seller will deliver to the Agent as soon as reasonably possible and in any amounts are required to event within 60 days after the close of each fiscal quarter (90 days-after the close of the fourth quarter), its in-house prepared (A) balance sheet as at the end of such fiscal quarter setting forth in comparative form the corresponding figures as at the end of the preceding fiscal quarter, and (B) statement of income for such fiscal quarter setting forth in comparative form the corresponding figures for the previous fiscal quarter, with transactions and account balances accounted for in conformity with generally accepted accounting principles applied on a basis consistent with that of the preceding quarter (except that transfers of Receivables, regardless of the date of transfer, may be withheld accounted for U.S. federal income tax purposes with respect to any payments to Buyer in connection accordance with the Transaction effected by this Agreementrules in effect prior to January 1, Seller shall so withhold (if so required1997) or containing disclosure of the effect on financial position or results of operations of any change in the application of accounting principles during the quarter, together with an Officer's Certificate certifying as to such financial statements and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form signer thereof has obtained no knowledge of any Unmatured Termination Event or forms as the Seller reasonably requests to minimize or avoid any such withholdingTermination Event.
(g) The Promptly after learning thereof, the Seller shall provide Buyer with will notify the following financial and reporting information:
Agent of (i) Within 45 days after the last day details of any action, proceeding, investigation or claim against or affecting the first three fiscal quarters in Seller instituted before any fiscal yearcourt, an unaudited statement of arbitrator or Governmental Authority or, to the Seller’s income and expenses for such quarter and assets and liabilities as of 's knowledge threatened to be instituted, which, if determined adversely would be likely to have a material adverse effect on (A) the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of performance by the Seller’s income and expenses for such year and assets and liabilities as , TRI, Eagle Crest or the Master Servicer of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, except for their respective obligations under any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect Facility Document to which adequate reserves have been provided.
it is a party or by which it is bound, (iB) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence validity or enforceability of any Event of Default or Default.
(j) All informationFacility Document, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.55
Appears in 1 contract
Samples: Receivables Transfer Agreement (Trendwest Resorts Inc)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.;
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee and copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved;
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first or second priority security interest interest, as applicable, in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerCollateral, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If ;
(d) Seller shall notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any amount payable under event has occurred that constitutes an Event of Default with respect to Seller or in connection any event that with any the giving of the Purchased Securities notice or lapse of time, or both, would become an Event of Default with respect to Seller;
(e) Seller covenants that each Mortgage Loan subject to this Agreement shall be or become evidenced serviced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer, duly endorsed an approved servicer in a manner satisfactory to Buyer, to be held as a Purchased Security under good standing with the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.Agencies;
(f) If Seller covenants to provide Buyer with a copy of any amounts are required material changes to be withheld for U.S. federal income tax purposes with respect Seller's underwriting guidelines prior to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid purchase of any such withholding.Mortgage Loan hereunder;
(g) The Seller shall covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment of Seller against interest rate risks;
(h) Seller covenants to provide Buyer on the first Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions; and
(i) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of its fiscal year, Seller's audited consolidated and consolidating statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Peat Marwick or another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement Seller's consolidated and consolidating statements of the Seller’s income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP;
(iiiii) Within 90 30 days after the last day of its fiscal year, each calendar month an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after officer's certificate from a responsible senior officer of the Seller has any knowledge addressed to Buyer certifying that, as of the occurrence last day such calendar month, (x) Seller is in compliance in all material respects with all of any the terms, conditions and requirements of this Agreement, and (y) no Event of Default or Default.exists; and
(jiv) All informationAs soon as available, copies of any proxy statements, financial statements, and reports which Seller sends to its stockholders, and copies of any regular, periodic and special reports, exhibitsand all registration statements under the Securities Act of 1933, schedulesas amended, financial statements or certificates of which it files with the Seller Securities and Exchange Commission or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will government authority which may be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAPsubstituted therefor, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirementswith any national securities exchange.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (Novastar Financial Inc)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.;
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee, copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved;
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerCollateral, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If ;
(d) Seller shall notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any amount payable under event has occurred that constitutes an Event of Default with respect to Seller or in connection any event that with any the giving of the Purchased Securities shall be notice or lapse of time, or both, would become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered an Event of Default with respect to Seller;
(e) Seller covenants to deliver Buyer, duly endorsed in at the beginning of each month, a manner satisfactory report listing all present commitments obtained by Seller from credit worthy third- party investors to Buyer, purchase the Mortgage Loans within the following sixty days. Seller must demonstrate based upon such report that it has a whole loan sale take-out capability to be held as a Purchased Security under repurchase the Transaction pursuant to this Agreement, and Mortgage Loans on the documents delivered in connection herewith.applicable Repurchase Date;
(f) If Seller covenants to provide Buyer with a copy of any amounts are required material changes to be withheld for U.S. federal income tax purposes with respect Seller's underwriting guidelines prior to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid effectiveness of any such withholding.change;
(g) The Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment against interest rate risks;
(h) Seller covenants to provide Buyer on the first Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions;
(i) Seller covenants to provide Buyer or its designee with the option and right (but not the obligation) of acting as a lead managing underwriter or placement agent for any securities of the Seller or its subsidiaries collateralized by, or representing interests in, the Purchased Mortgage Loans (each such transaction, a "Securitization"). Each Securitization shall contain -------------- terms mutually acceptable to Buyer and Seller (including, without limitation, customary provisions regarding representations and warranties, covenants, delivery terms, conditions, indemnification, contribution and termination). If Buyer or its affiliate declines to participate in any Securitization, Seller or its subsidiaries may cause such transaction to be executed by others without prejudice to Buyer's rights as to future transactions; and
(j) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of its fiscal year, Seller's audited combined and combining statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of a "Big Six" nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld).
(ii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement Seller's combined and combining statements of the Seller’s income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP.
(iiiii) Within 90 30 days after the last day of its fiscal year, each calendar month an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after officer's certificate from a responsible senior officer of the Seller has any knowledge addressed to Buyer certifying that, as of such calendar month, (x) Seller is in compliance with all of the occurrence terms, conditions and requirements of any this Agreement, and (y) no Event of Default or Defaultexists.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (United Panam Financial Corp)
Affirmative Covenants of the Seller. From the date hereof until the Final Termination Date, the Seller covenants and agrees that it will, unless the Trust and the Financial Services Agent shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any material adverse change comply in all respects with all applicable laws, rules, regulations and orders with respect to it, its business operations and/or financial condition; providedand properties and all Pool Assets, however, that nothing in this Section 10 shall relieve such compliance to include paying before the same become delinquent all Taxes and Security Interests imposed upon the Seller of or its obligations under property in accordance with its normal policies with respect thereto, except to the Agreement.extent the same are contested in good faith and by appropriate proceedings or where failure to do so could not reasonably be expected to have a Material Adverse Effect;
(b) The Seller preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified as an extra- provincial corporation or other out-of-jurisdiction corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect;
(1c) shall defend at any time and from time to time during regular business hours, upon five Business Days’ prior written notice, subject to Section 10.8, (A) assemble such of the right, title Records or copies thereof in its possession or control as may reasonably be required by the Agents or the Financial Services Agent and interest of Buyer in and make same available to the Purchased Securities againstAgents and the Financial Services Agent or their respective agents at the principal place of business of the Seller and, if the Records cannot be provided solely at such office, at such other offices of the Seller or its Affiliates where Records are kept, and take permit the Agents and the Financial Services Agent and their respective agents or representatives, to examine and make copies, as reasonably requested, of such Records, including in connection with the preparation of such annual reports or agreed upon procedures as may be required by the Agents and (B) permit the Agents and the Financial Services Agent or their respective agents to visit the offices and properties of the Seller and its Affiliates for the purpose of discussing matters relating to the Pool Assets and the Seller’s performance hereunder with any of the Seller’s officers or employees having knowledge of such matters, provided that each of the Agents and the Financial Services Agent shall act reasonably to minimize any disruption to the Seller in connection therewith; provided that prior to the occurrence of a Cash Reserve Event or a Trigger Event, the Agents and the Financial Services Agent shall not be reimbursed for more than two such examinations in any year in the aggregate, if a Cash Reserve Event has occurred and is continuing, the Agents and the Financial Services Agent shall not be reimbursed for more than four such examinations in any year in the aggregate and, if a Trigger Event has occurred and is continuing, the Agents and the Financial Services Agent shall be reimbursed for all such examinations;
(d) at its expense, timely and fully perform and comply in all material respects with all material provisions, covenants and other action obligations required to be observed, complied with or performed by the Seller under the Contracts relating to the Pool Assets;
(e) give the Trust and the Financial Services Agent at least 30 days’ prior written notice of any change in the address of its chief place of business and chief executive office, and written notice promptly after any change in the address of an office listed under the heading “Location of Records” in Schedule “B”, and each such notice shall be deemed to amend Schedule “B” accordingly;
(f) provide to the Trust and the Financial Services Agent not less than 30 days’ prior notice of any change in the name of the Seller as stated in its constating documents;
(g) co-operate with, and offer such assistance as may reasonably be requested by, the chartered accountants selected by the Financial Services Agent to furnish reports in respect of the Trust, the Purchase and any Increase and the servicing of the Pool Assets under this Agreement;
(h) upon request of the Financial Services Agent and with the Seller’s written consent, such consent not to be unreasonably withheld, request the Seller’s auditors to assist the auditors of the Trust, the Agents or the Financial Services Agent to the extent and in such manner as is necessary reasonably required for such auditors to remove, report on the Liens, security interests, claims and demands status of all Persons the Pool Assets under this Agreement;
(other than security interests by i) conduct Lot Checks of each Obligor in accordance with the Seller’s customary practices or through Buyer) and (2) shall take all action on such more frequent intervals as may be reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in Required Agents and the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.Financial Services Agent;
(cj) The Seller will permit Buyer, or any designated representative promptly after becoming aware thereof, to inspect such Seller’s records with respect to but in any event no later than two Business Days thereafter, provide the Purchased Securities Trust and the conduct and operation of its business related thereto upon reasonable prior written Financial Services Agent with notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If Servicer Termination Event that is continuing when the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect becomes aware thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(iik) Within 90 days after make or cause to be made all filings, recordings, and registrations and take all other actions in each jurisdiction necessary or appropriate to validate, preserve, perfect or protect the last day of its fiscal year, an audited statement co-ownership interests of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, Trust in the case of SEC filingsPool Assets, including the appropriate SEC accounting requirementsright to enforce the Related Security.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee, copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If any amount payable under or in connection with any .
(d) Seller shall notify Buyer no later than one (1) Business Day after an executive officer of the Purchased Securities shall be Seller has actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered an Event of Default with respect to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithSeller.
(e) [Reserved].
(f) If any amounts are required Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to be withheld for U.S. federal income tax purposes enter into hedging transactions with respect to any payments fixed rate Purchased Mortgage Loans in order to Buyer protect adequately, in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingreasonable judgment against interest rate risks.
(g) The [Reserved].
(h) Seller shall covenants to provide Buyer with a copy of any changes to its underwriting guidelines, prior to the effectiveness of such changes.
(i) Seller covenants to provide Buyer on the first Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information, updated as appropriate, in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions.
(j) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 95 days after the last day of its fiscal year, Seller's audited consolidated statements of income and statements of cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of one of the "Big Six" independent certified public accounting firms.
(ii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement Seller's consolidated statements of the Seller’s income and expenses statements of cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP.
(iiiii) Within 90 30 days after the last day of its fiscal yeareach calendar quarter an officer's certificate from Seller's chief financial officer or treasurer, an audited statement of the Seller’s income and expenses for such year and assets and liabilities addressed to Buyer certifying that, as of the end date of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes duecertificate, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer is in compliance with all of the Seller terms, conditions and requirements of this Agreement, and (ii) such officer has any knowledge of the occurrence of any Event of Default or Default.
(j) All informationno actual knowledge, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or except as specifically stated therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declaredhereunder.
(iv) As soon as available, copies of all proxy statements, financial statements, and reports which Seller sends to its stockholders, and copies of all regular, periodic and special reports, and all registration statements under the Seller shall cooperate reasonably Securities Act of 1933, as amended, which it files with the BuyerSecurities and Exchange Commission or any government authority which may be substituted therefor, or with any national securities exchange.
Appears in 1 contract
Samples: Master Repurchase Agreement (First Alliance Corp /De/)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller’s board of directors or loan committee and copies of the minutes of the meetings of Seller’s board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer’s request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit Buyer, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Mortgage Loans (including, among other things, filing such UCC Uniform Commercial Code financing statements as Buyer may reasonably request).
(d) The Seller acknowledges that the 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. If The Seller agrees that upon reasonable prior notice to the Seller, the 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 amount payable and all documents, records, agreements, instruments or information relating to the Mortgage Loans in the possession, or under or the control, of the Seller. The Seller shall reimburse the Buyer for any and all out-of-pocket costs and expenses reasonably incurred by the Buyer in connection with any of the Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction ’s on-going due diligence and auditing activities pursuant to this AgreementSection 12(d).
(e) Seller shall notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, and if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the documents delivered in connection herewithgiving of notice or lapse of time, or both, would become an Event of Default with respect to Seller.
(f) If any amounts are required Seller shall cause each Purchased Mortgage Loan subject to this Agreement to be withheld for U.S. federal income tax purposes serviced in accordance with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingSection 25 hereof.
(g) The Seller shall provide Buyer with a copy of any proposed material changes to Seller’s Underwriting Guidelines not less than ten (10) Business Days prior to the effectiveness of any such change.
(h) Seller shall, upon request of Buyer enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment of Buyer, against interest rate risks and assign such hedging transactions to Buyer.
(i) Seller shall provide Buyer on each Purchase Date and by no later than the fifth Business Day of each 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 Mortgage Loans and any additional reports as Buyer may reasonably request with respect to the Mortgage Loans.
(j) Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of its fiscal year, (i) the audited consolidated balance sheets of each of Guarantor and Seller and its respective Subsidiaries and the unaudited consolidating balance sheet of each of Guarantor and Seller and its respective Subsidiaries 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 the case of the audited consolidated statement in comparative form the figures for the previous fiscal year, and accompanied by an opinion of a nationally recognized independent accounting firm which report shall state that such audited consolidated financial statements present fairly the financial positions and results of operations of each of Guarantor and Seller and its respective 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 Guarantor’s, Seller’s or any Subsidiary’s records);
(ii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an (i) the unaudited statement consolidated and consolidating balance sheets as of the Seller’s close of such quarter and related statements of income and expenses changes in cash flow for such quarter and assets and liabilities that portion of the fiscal year ending as of the end of such quarterquarter setting forth in comparative form the figures for the corresponding period in the prior year in each case certified by a Responsible Officer as fairly presenting the consolidated financial position of Seller and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP; and
and (ii) forecasts prepared by management of Seller for each of the succeeding months for a twelve month period setting forth in reasonable detail the projected origination level, operating cost and estimate of the net interest margin assumptions and resulting cash flow, balance sheet and income statement as at the end of each such month and such twelve-month period, together with a statement of all material assumptions on which such forecasts are based (it being understood that such forecasts are subject to inherent uncertainties and contingencies, many of which are beyond Seller’s control, and that no assurance can be given that such forecasts will be realized);
(iii) Within 30 days after the last day of each month in any fiscal year, (a) the consolidated unaudited general ledger trial balance, statements of income and balance sheets and statements of changes in cash flow of Seller and its Subsidiaries for such month and as of the end of such month in each case certified by a Responsible Officer as fairly presenting the consolidated financial position of Seller and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP; (b) a budget forecast for cash use by Seller for the two month period then commencing setting forth sources and uses of such cash by Seller for such period, certified by a Responsible Officer and (c) Seller’s monthly report in substantially the form attached hereto as Exhibit X;
(iv) Within 30 days after the last day of each month in any fiscal year of the Seller, a compliance certificate from a Responsible Officer certifying that to the best knowledge of such officer, no default or Event of Default under the Agreement has occurred and is continuing (or if a default or Event of Default has occurred and is continuing, stating the nature thereof and the action which Seller proposes to take with respect thereto);
(v) Within 60 days after the last day of the first three fiscal quarters in any fiscal year and within 90 days after the last day of its fiscal year of the Seller, an officer’s certificate from a Responsible Officer addressed to Buyer certifying that, as of such date, 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 the calculations used in demonstrating compliance with the financial covenants set forth in Section 13(xiii)-(xviii) for all applicable periods during such fiscal year);
(vi) Upon request by the Buyer, copies of any financial statements, appraisal, projections or other relevant documents in the Seller’s possession useful in evaluating the credit of Seller and its Subsidiaries;
(vii) As soon as available, copies of all proxy statements, financial statements, and reports which Guarantor 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, which it files with the Securities and Exchange Commission or any government authority which may be substituted therefor, or with any national securities exchange;
(viii) Within 45 days after the last day of each fiscal quarter in any fiscal year, an audited statement officer’s certificate from a Responsible Officer addressed to Buyer certifying the calculation of Tangible Net Worth, including the Seller’s income valuation (and expenses for the assumptions used to derive such year valuation) of residual certificates, interest-only certificates and assets and liabilities as other comparable instruments with respect to securitizations of mortgage loans included in the end calculation of such yearTangible Net Worth;
(ix) Promptly after entering into any hedging transactions described in subsection (h) above, notify Buyer of such hedging transactions; and
(x) Promptly after the renewal of any fidelity insurance and errors omissions insurance policy that identifies Buyer as a co-insured, notify Buyer of such renewal.
(hk) Seller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, within one Business Day following written notice from Buyer, as to which a representation or warranty made by Seller set forth in Schedule 1 hereto proves to be incorrect or untrue in any material respect.
(l) The Seller shall timely file (i) preserve and maintain its legal existence and all tax returns that are required to of its material rights, privileges, licenses and franchises; (ii) comply in all material respects with all Requirements of Laws (including, without limitation, all environmental laws and local, municipal, state or Federal ordinances, regulations or statutes regarding Predatory Lending Practices) and Contractual Obligations; and (iii) keep adequate records and books of account, in which complete entries will be filed by them made in accordance with GAAP consistently applied. Seller shall maintain, and shall timely pay all taxes duemake available to Buyer upon request, except 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 any such taxes as Certain Closed-End Home Mortgages, are being appropriately contested in good faith by appropriate proceedings diligently conducted applicable.
(m) The Seller shall maintain insurance with financially sound and reputable insurance companies, and with respect to property and risks of a character usually maintained by entities engaged in the same or similar business similarly situated, against loss, damage and liability of the kinds and in the amounts customarily maintained by such entities. In addition, the 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 in an amount at least equal to $10,000,000 and an errors and omissions insurance policy covering its officers and employees and other Persons acting on behalf of it in an amount at least equal to such amounts as are required by criteria set forth by FNMA under its approved mortgage program, which adequate reserves have been providedinsurance policies shall be obtained from insurance companies which are acceptable to the Buyer in its reasonable discretion and shall name Buyer as a loss payee.
(in) The Seller shall give notice to the Buyer Buyer, immediately after upon (and in any event not more than one Business Day after) the Seller obtaining notice thereof, of:
(i) any material default or litigation related to any Collateral, any Material Adverse Effect and any event or change in circumstances which is reasonably expected to have a responsible officer Material Adverse Effect; and
(ii) with respect to any Purchased Mortgage Loan, if the Seller acquires knowledge that the Mortgaged Property violates environmental law or has been materially damaged so as to affect adversely the value as collateral of such Mortgage Loan. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the Seller has any knowledge setting forth details of the occurrence of any Event of Default referred to therein and stating what action the Seller has taken or Defaultproposes to take with respect thereto.
(jo) All information, reports, exhibits, schedules, financial statements or certificates of the The Seller or any of its officers furnished to shall permit the Buyer hereunder and during the to maintain at Buyer’s diligence expense a full time employee at the Sellers’ principal place of business to monitor the Seller is Seller’s Mortgage Loan origination and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirementsservicing process.
(kp) If an Event of Default has been declared or deemed declared, the The Seller shall cooperate reasonably use commercially reasonable efforts to maintain at all times committed facilities (other than this Agreement) with the Buyera maximum aggregate principal amount of commitments equal to at least $150,000,000.
Appears in 1 contract
Affirmative Covenants of the Seller. The Seller shall, ----------------------------------- unless the Operating Agent shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller perform each of its obligations under this Agreement and the Related Documents and comply in all respects with all of its obligations under this Agreement and the Related Documents and comply with all material requirements of applicable law, rules, regulations and orders with respect to this Agreement., the Related Documents, to its business and properties and all Transferred Receivables, related Contracts and Collections with respect thereto;
(b) The Seller (1) shall defend the rightpreserve and maintain its corporate existence, title rights, franchises and interest of Buyer in and to the Purchased Securities against, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest privileges in the Purchased Securities subject to jurisdiction of its incorporation and shall conduct its business in accordance with the Transaction in the event the Transaction is recharacterized as a secured financing.terms of its certificate of incorporation and bylaws;
(c) The Seller will permit Buyer, or any designated representative thereof, continue to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of operate its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times in the manner set forth in Sections 4.01(d) and with reasonable frequency, and to make copies of extracts of any and all thereof.(e);
(d) If the Seller shall at any time become entitled to deposit all Collections it may receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of Transferred Receivables into the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.Collection Account within one Business Day of receipt;
(e) At any time from time to time upon prior written request of Buyer, at use the sole expense proceeds of the SellerPurchases made hereunder solely for (i) the purchase of Receivables from the Originator, the Seller will promptly (ii) payment of dividends to its shareholder, (iii) repayments 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction Subordinated Note, and (iv) payment of administrative fees or Servicing Fees or expenses to the Originator or the Parent or routine administrative expenses pursuant to this Agreement, and the documents delivered in connection herewith.Related Documents or the Services Agreement;
(f) If any amounts are required permit the Purchaser, the Operating Agent and the Collateral Agent to make or cause to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreementmade (and, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day occurrence of and during the first three fiscal quarters in any fiscal yearcontinuance of a Termination Event, an unaudited statement of at the Seller’s income 's expense) inspections and expenses for such quarter audits of any books, records and assets and liabilities as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer papers of the Seller has any knowledge of and the occurrence Servicer and to make extracts therefrom and copies thereof, or to make inspections and examinations of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates properties and facilities of the Seller or any of its officers furnished and the Servicer, on reasonable notice, at all such reasonable times and as often as reasonably required in order to the Buyer hereunder and during the Buyer’s diligence of assure that the Seller is and will be true in compliance with its obligations under this Agreement and complete the Related Documents;
(g) pay, perform and not fail discharge all of its obligations and liabilities, including, without limitation, all taxes, assessments and governmental charges upon its income and properties when due, unless and to disclose any material facts or omit the extent only that such obligations, liabilities, taxes, assessments and governmental charges shall be contested in good faith and by appropriate proceedings and that, to state any material fact necessary to make the statements therein or thereinextent required by GAAP, in light of the circumstances in which they proper and adequate book reserves relating thereto are made, not misleading. All required financial statements delivered established by the Seller and then only to the Buyer pursuant extent that a bond is filed in cases where the filing of a bond is necessary to this Agreement shall be prepared in accordance with GAAP, or as applicable, in avoid the case creation of SEC filingsan Adverse Claim against any of its properties;
(h) upon request of the Purchaser, the appropriate SEC accounting requirements.Collateral Agent or the Operating Agent, xxxx its Records to show the interests of the Purchaser and Collateral Agent; and
(ki) If an Event of Default has been declared or deemed declaredpay the Purchaser's reasonable attorney's disbursements, reasonable travel and entertainment expenses and rating agency fees (provided that (x) such travel and entertainment expenses shall only be payable to the Seller shall cooperate reasonably extent they are consistent with the BuyerParent's travel and entertainment policy and (y) the liability of the Originator with respect to rating agency fees incurred prior to the Effective Date shall not exceed $40,000).
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Merisel Inc /De/)
Affirmative Covenants of the Seller. From the date hereof until the Final Termination Date, the Seller covenants and agrees that it will, unless the Trust shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any material adverse change comply in all respects with all applicable laws, rules, regulations and orders with respect to it, its business operations and/or financial condition; providedand properties and all Pool Assets, however, that nothing in this Section 10 shall relieve such compliance to include paying before the same become delinquent all Taxes and Security Interests imposed upon the Seller of or its obligations under property in accordance with its normal policies with respect thereto, except to the Agreement.extent the same are contested in good faith and by appropriate proceedings or where failure to do so could not reasonably be expected to have a Material Adverse Effect;
(b) The Seller preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified as an extra-provincial corporation or other out-of-jurisdiction corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect;
(1c) shall defend at any time and from time to time during regular business hours, upon five Business Days' prior written notice, subject to Section 10.9, (A) assemble such of the right, title Records or copies thereof in its possession or control as may reasonably be required by the Trust and interest of Buyer in and make same available to the Purchased Securities againstTrust at the principal place of business of the Seller and, if the Records cannot be provided solely at such office, at such other offices of the Seller or its Affiliates where Records are kept, and take permit the Trust, its agents or representatives, to examine and make copies, as reasonably requested, of such Records and (B) permit the Trust or its agents to visit the offices and properties of the Seller and its Affiliates for the purpose of discussing matters relating to the Pool Assets and the Seller's performance hereunder with any of the Seller's officers or employees having knowledge of such matters, provided that the Trust shall act reasonably to minimize any disruption to the Seller in connection therewith; provided that prior to the occurrence of a Cash Reserve Event or a Trigger Event, the Trust shall not be reimbursed for more than two such examinations in any year, if a Cash Reserve Event has occurred and is continuing, the Trust shall not be reimbursed for more than four such examinations in any year and, if a Trigger Event has occurred and is continuing, the Trust shall be reimbursed for all such examinations;
(d) at its expense, timely and fully perform and comply in all material respects with all material provisions, covenants and other action obligations required to be observed, complied with or performed by the Seller under the Contracts relating to the Pool Assets;
(e) give the Trust at least 30 days' prior written notice of any change in the address of its chief place of business and chief executive office, and written notice promptly after any change in the address of an office listed under the heading "Location of WSLegal\047083\00034\12027575v8 I\5470303.2 Records" in Schedule "B", and each such notice shall be deemed to amend Schedule "B" accordingly;
(f) provide to the Trust not less than 30 days' prior notice of any change in the name of the Seller as stated in its constating documents;
(g) co-operate with, and offer such assistance as may reasonably be requested by, the chartered accountants selected by the Trust to furnish reports in respect of the Trust, the Purchase and any Increase and the servicing of the Pool Assets under this Agreement;
(h) upon request of the Trust and with the Seller's written consent, such consent not to be unreasonably withheld, request the Seller's auditors to assist the Trust's auditors to the extent and in such manner as is necessary reasonably required for the Trust's auditors to remove, report on the Liens, security interests, claims and demands status of all Persons the Pool Assets under this Agreement;
(other than security interests by i) conduct Lot Checks of each Obligor in accordance with the Seller's customary practices or through Buyer) and (2) shall take all action on such more frequent intervals as may be reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.Trust;
(cj) The Seller will permit Buyer, or any designated representative promptly after becoming aware thereof, to inspect such Seller’s records but in any event no later than two Business Days thereafter, provide the Trust with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If Servicer Termination Event that is continuing when the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect becomes aware thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(iik) Within 90 days after make or cause to be made all filings, recordings, and registrations and take all other actions in each jurisdiction necessary or appropriate to validate, preserve, perfect or protect the last day of its fiscal year, an audited statement co-ownership interests of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, Trust in the case of SEC filingsPool Assets, including the appropriate SEC accounting requirementsright to enforce the Related Security.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee and copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Collateral without the prior express written consent of Buyer.
(e) Seller shall be notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered an Event of Default with respect to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithSeller.
(f) If any amounts are required Seller covenants that each Purchased Mortgage Loan subject to this Agreement shall be withheld for U.S. federal income tax purposes serviced in accordance with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingSection 25 hereof.
(g) The Seller covenants to provide Buyer with a copy of any material changes to Seller's underwriting guidelines prior to the effectiveness of any such change. Buyer shall use commercially reasonable efforts to notify Seller within 7 Business Days of receipt of such changes if such changes are acceptable. If such changes are not acceptable to Buyer in its sole discretion, Buyer shall not be obligated to purchase Mortgage Loans hereunder that are originated in accordance with such changed underwriting guidelines.
(h) Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment against interest rate risks.
(i) Seller covenants to provide Buyer on the seventh Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions.
(j) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of its fiscal year, Guarantor's audited consolidated statements of income and balance sheets and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Price Watexxxxxx XX xx another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 90 days after the last day of its fiscal year, Seller's audited consolidated statements of income and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Price Watexxxxxx XX xx another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(iii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an Seller's unaudited statement consolidated statements of the Seller’s income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP;
(iiiv) Within 90 30 days after the last day of each calendar month, an officer's certificate from the chief financial officer or vice president of finance of Seller addressed to Buyer certifying that, as of such calendar month, (x) Seller is in compliance with all of the terms, conditions and requirements of this Agreement (such certification to include a calculation on a quarterly basis of the financial tests set forth in Sections 13(xiii) - (xviii)), and (y) no Event of Default exists;
(v) As soon as available, copies of all proxy statements, financial statements, and reports which Guarantor 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, which it files with the Securities and Exchange Commission or any government authority which may be substituted therefor, or with any national securities exchange
(vi) Within 30 days after the last day of each fiscal quarter in any fiscal year, an audited statement officer's certificate from the chief financial officer or vice president of finance of Guarantor addressed to Buyer certifying the Seller’s income calculation of Tangible Net Worth, including the valuation (and expenses for the assumptions used to derive such year valuation) of residual certificates, interest-only certificates and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and other comparable instruments with respect to which adequate reserves have been provided.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer securitizations of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, mortgage loans included in the case calculation of SEC filings, the appropriate SEC accounting requirementssuch Tangible Net Worth.
(k) If an Event Seller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, within two Business Days following written notice from Buyer, which as to a representation or warranty made by Seller set forth in Exhibit V hereto proves to be incorrect or untrue in any material respect.
(l) Seller covenants to provide Buyer, within seven Business Days following the execution thereof by the parties thereto, copies of Default has been declared each material agreement or deemed declaredinstrument entered into after the date of this Agreement by Guarantor, Seller or any of their respective subsidiaries with respect to indebtedness for borrowed money, certified by the chief financial officer or vice president of finance of Guarantor or Seller shall cooperate reasonably with as being a true and correct copy of such agreement or instrument, as the Buyercase may be, and in full force and effect.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee and copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If .
(d) Seller covenants that it will not create, incur or permit to exist any amount payable under lien, encumbrance or security interest in connection with or on any of the Purchased Securities Collateral without the prior express written consent of Buyer.
(e) Seller shall be notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered an Event of Default with respect to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithSeller.
(f) If any amounts are required Seller covenants that each Purchased Mortgage Loan subject to this Agreement shall be withheld for U.S. federal income tax purposes serviced in accordance with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingSection 25 hereof.
(g) The Seller covenants to provide Buyer with a copy of any changes to Seller's underwriting guidelines prior to the effectiveness of any such change. Buyer shall use commercially reasonable efforts to notify Seller within 10 Business Days of receipt of such changes if such changes are acceptable. If such changes are not acceptable to Buyer in its sole discretion, Buyer shall not be obligated to purchase Mortgage Loans hereunder that are originated in accordance with such changed underwriting guidelines.
(h) Seller covenants to provide Buyer or its designee with the option and right (but not the obligation) of acting as lead-managing underwriter or placement agent for any securities of the Seller or its subsidiaries collateralized by, or representing interests in, the Purchased Mortgage Loans constituting more than 50% of the collateral therefor (each such transaction, a "Securitization"). Each Securitization shall contain terms mutually acceptable to Buyer and Seller (including, without limitation, customary provisions regarding representations and warranties, covenants, delivery terms, conditions, indemnification, contribution and termination). If Buyer or its affiliate declines to participate in any Securitization, Seller or its subsidiaries may cause such transaction to be executed by others without prejudice to Buyer's rights as to future transactions.
(i) Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to enter into hedging transactions with respect to fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment against interest rate risks.
(j) Seller covenants to provide Buyer on the seventh Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions.
(k) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of its fiscal year, Guarantor's audited consolidated statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of Price Watexxxxxx XX xx another nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an Guarantor's unaudited statement consolidated statements of the Seller’s income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP;
(iiiii) Within 90 30 days after the last day of its fiscal year, each calendar month an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after officer's certificate from a responsible senior officer of the Seller has any knowledge addressed to Buyer certifying that, as of such calendar month, (x) Seller is in compliance with all of the occurrence terms, conditions and requirements of any this Agreement, and (y) no Event of Default exists; and
(iv) As soon as available, copies of all proxy statements, financial statements, and reports which Guarantor 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, which it files with the Securities and Exchange Commission or Defaultany government authority which may be substituted therefor, or with any national securities exchange.
(jl) All informationSeller covenants to repurchase or substitute pursuant to Section 9 hereof any Mortgage Loan, reportswithin two Business Days following written notice from Buyer, exhibits, schedules, financial statements which as to a representation or certificates of the warranty made by Seller set forth in Exhibit V hereto proves to be incorrect or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose untrue in any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirementsrespect.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Each of Guarantor and Seller shall covenants that it will promptly notify Buyer of any material adverse change in its business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve the Seller of its obligations under the Agreement.
(b) The Each of Guarantor and Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's and Guarantor's respective board of directors or loan committee, copies of the minutes of the meetings of Seller's and Guarantor's respective board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved.
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerMortgage Loans, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If any amount payable under or in connection with any .
(d) Each of Guarantor and Seller shall notify Buyer no later than one (1) Business Day after an executive officer of the Purchased Securities shall be Guarantor or Seller has actual knowledge thereof, if any event has occurred that constitutes an Event of Default with respect to the Guarantor or Seller or any event that with the giving of notice or lapse of time, or both, would become evidenced by any promissory note, other instrument an Event of Default with respect to the Guarantor or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewithSeller.
(e) [Reserved].
(f) If any amounts are required Seller covenants, upon request of Buyer after the occurrence of a Collateral Deficit, to be withheld for U.S. federal income tax purposes enter into Xxxxxx with respect to any payments fixed rate Purchased Mortgage Loans in order to protect adequately, in the reasonable judgment of Buyer against interest rate risks. Seller shall assign its rights under the Hedge to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) upon Buyer's request and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The assignment occurs, Buyer will deliver shall include in any determination of Market Value the related value of such form or forms as the Seller reasonably requests to minimize or avoid any such withholdingHedge.
(g) The [Reserved].
(h) Seller shall covenants to provide Buyer with a copy of any changes to its underwriting guidelines, prior to the effectiveness of such changes.
(i) Seller covenants to provide Buyer on the first Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information, updated as appropriate, in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions.
(j) Guarantor covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 95 days after the last day of its fiscal year, Guarantor's audited consolidated statements of income and statements of cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by an unqualified report of one of the "Big Six" independent certified public accounting firms.
(ii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement Guarantor's consolidated statements of the Seller’s income and expenses statements of cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP.
(iiiii) Within 90 30 days after the last day of its fiscal yeareach calendar quarter an officer's certificate in the form of Exhibit VI from Guarantor's chief financial officer or treasurer, an audited statement of the Seller’s income and expenses for such year and assets and liabilities addressed to Buyer certifying that, as of the end date of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes duecertificate, 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.
(i) The each of guarantor and Seller shall give notice to the Buyer immediately after a responsible officer is in compliance with all of the Seller terms, conditions and requirements of this Agreement, and (ii) such officer has any knowledge of the occurrence of any Event of Default or Default.
(j) All informationno actual knowledge, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or except as specifically stated therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declaredhereunder.
(iv) As soon as available, copies of all proxy statements, financial statements, and reports which Guarantor sends to its stockholders, and copies of all regular, periodic and special reports, and all registration statements under the Seller shall cooperate reasonably Securities Act of 1933, as amended, which it files with the BuyerSecurities and Exchange Commission or any government authority which may be substituted therefor, or with any national securities exchange.
Appears in 1 contract
Samples: Master Repurchase Agreement (First Alliance Corp /De/)
Affirmative Covenants of the Seller. For so long as this Agreement is in effect:
(a) The Seller shall covenants that it will promptly notify Buyer of any material adverse change in its the business operations and/or financial condition; provided, however, that nothing in this Section 10 shall relieve condition of the Seller of its obligations under the Agreement.Seller;
(b) The Seller shall provide Buyer with copies of such documentation as Buyer may reasonably request evidencing the truthfulness of the representations set forth in Section 10, including but not limited to resolutions evidencing the approval of this Agreement by Seller's board of directors or loan committee, copies of the minutes of the meetings of Seller's board of directors or loan committee at which this Agreement and the Transactions contemplated by this Agreement were approved;
(1c) shall defend the rightSeller shall, title and interest of Buyer in and to the Purchased Securities againstat Buyer's request, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyer) and (2) shall take all action reasonably requested by the Buyer necessary to ensure that Buyer will have a first or second priority security interest interest, as applicable, in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit BuyerCollateral, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Uniform Commercial Code financing statements as Buyer may reasonably request). If ;
(d) Seller shall notify Buyer no later than one (1) Business Day after obtaining actual knowledge thereof, if any amount payable under event has occurred that constitutes an Event of Default with respect to Seller or in connection any event that with any the giving of the Purchased Securities notice or lapse of time, or both, would become an Event of Default with respect to Seller;
(e) Seller covenants that each Mortgage Loan subject to this Agreement shall be or become evidenced serviced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to a servicer approved by Buyer, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.;
(f) If Seller covenants to provide Buyer with a copy of any amounts are required material changes to be withheld for U.S. federal income tax purposes with respect Seller's underwriting guidelines prior to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid effectiveness of any such withholding.change;
(g) The Seller covenants for the term of this Agreement to provide Buyer or its designee with the exclusive option and right (but not the obligation) of acting as lead managing underwriter or placement agent for any securities of Seller or its Affiliates which are collateralized by, or representing interests in, Mortgage Loans that are or were subject to Transactions hereunder (each such transaction, a "Securitization"). Each Securitization shall contain terms mutually acceptable to Buyer and Seller (including, without limitation, customary and competitive compensation provisions as well as customary provisions regarding representations and warranties, covenants, delivery terms, conditions, indemnification, contribution and termination). If Buyer or its affiliate declines to participate in any Securitization (and the failure to respond to Seller within 14 days after receipt of a written offer shall be deemed to be declining), Seller or its subsidiaries may cause such transaction to be executed by others without prejudice to Buyer's rights as to future transactions or without any other penalty;
(h) Seller covenants to provide Buyer on the fifth Business Day of each month, either by direct modem electronic transmission or via a computer diskette, the Collateral Information in computer readable format with respect to all Purchased Mortgage Loans then subject to Transactions;
(i) Seller covenants to provide Buyer with the following financial and reporting information:
(i) Within 45 90 days after the last day of its fiscal year, Seller's audited combined and combining statements of income and statements of changes in cash flow for such year and balance sheets as of the end of such year in each case presented fairly in accordance with GAAP, and accompanied, in all cases, by a report of a nationally recognized independent certified public accounting firm consented to by Buyer (which consent shall not be unreasonably withheld);
(ii) Within 60 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement Seller's combined and combining statements of the Seller’s income and expenses statements of changes in cash flow for such quarter and assets and liabilities balance sheets as of the end of such quarter; andquarter presented fairly in accordance with GAAP;
(iiiii) Within 90 30 days after the last day of its fiscal year, each calendar quarter an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after officer's certificate from a responsible senior officer of the Seller has any knowledge addressed to Buyer certifying that, as of such calendar quarter, (x) Seller is in compliance with all of the occurrence terms, conditions and requirements of any this Agreement, and (y) no Event of Default or Default.exists; and
(jiv) All informationAs soon as available, copies of all proxy statements, financial statements, and reports which Seller sends to its stockholders, and copies of all regular, periodic and special reports, exhibitsand all registration statements under the Securities Act of 1933, schedulesas amended, financial statements or certificates of which it files with the Seller Securities and Exchange Commission or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will government authority which may be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAPsubstituted therefor, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirementswith any national securities exchange.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (Firstcity Financial Corp)
Affirmative Covenants of the Seller. From the date hereof until the Final Termination Date, the Seller covenants and agrees that it will, unless the Trust shall otherwise consent in writing:
(a) The Seller shall promptly notify Buyer of any material adverse change comply in all respects with all applicable laws, rules, regulations and orders with respect to it, its business operations and/or financial condition; providedand properties and all Pool Assets, however, that nothing in this Section 10 shall relieve such compliance to include paying before the same become delinquent all Taxes and Security Interests imposed upon the Seller of or its obligations under property in accordance with its normal policies with respect thereto, except to the Agreement.extent the same are contested in good faith and by appropriate proceedings or where failure to do so could not reasonably be expected to have a Material Adverse Effect;
(b) The preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified as an extra-provincial corporation or other out-of-jurisdiction corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect;
(c) at any time and from time to time during regular business hours, upon five Business Days' prior written notice, subject to Section 10.9, (A) assemble such of the Records or copies thereof in its possession or control as may reasonably be required by the Trust and make same available to the Trust at the principal place of business of the Seller and, if the Records cannot be provided solely at such office, at such other offices of the Seller or its Affiliates where Records are kept, and permit the Trust, its agents or representatives, to examine and make copies, as reasonably requested, of such Records and (1B) permit the Trust or its agents to visit the offices and properties of the Seller and its Affiliates for the purpose of discussing matters relating to the Pool Assets and the Seller's performance hereunder with any of the Seller's officers or employees having knowledge of such matters, provided that the Trust shall defend act reasonably to minimize any disruption to the rightSeller in connection therewith; provided that prior to the occurrence of a Cash Reserve Event or a Trigger Event, title the Trust shall not be reimbursed for more than two such examinations in any year, if a Cash Reserve Event has occurred and is continuing, the Trust shall not be reimbursed for more than four such examinations in any year and, if a Trigger Event has occurred and is continuing, the Trust shall be reimbursed for all such examinations;
(d) at its expense, timely and fully perform and comply in all material respects with all material provisions, covenants and other obligations required to be observed, complied with or performed by the Seller under the Contracts relating to the Pool Assets;
(e) give the Trust at least 30 days' prior written notice of any change in the address of its chief place of business and chief executive office, and written notice promptly after any change in the address of an office listed under the heading "Location of Records" in Schedule "B", and each such notice shall be deemed to amend Schedule "B" accordingly;
(f) provide to the Trust not less than 30 days' prior notice of any change in the name of the Seller as stated in its constating documents;
(g) co-operate with, and offer such assistance as may reasonably be requested by, the chartered accountants selected by the Trust to furnish reports in respect of the Trust, the Purchase and any Increase and the servicing of the Pool Assets under this Agreement, and furnish in respect of the preceding fiscal year, addressed to the Trust and such other Persons as the Trust may reasonably designate, a certificate of an officer who is familiar with this Agreement certifying that, to the knowledge of such officer, the Seller complied in such calendar year with its obligations hereunder except to the extent non-compliance therewith did not materially adversely affect the interest of Buyer the Trust and except as further set forth in such certificate;
(h) upon request of the Trust and with the Seller's written consent, such consent not to be unreasonably withheld, request the Seller's auditors to assist the Trust's auditors to the Purchased Securities against, extent and take in such other action manner as is necessary reasonably required for the Trust's auditors to remove, report on the Liens, security interests, claims and demands status of all Persons the Pool Assets under this Agreement;
(other than security interests by i) conduct Lot Checks of each Obligor in accordance with the Seller's customary practices or through Buyer) and (2) shall take all action on such more frequent intervals as may be reasonably requested by the Buyer to ensure that Buyer will have a first priority security interest in the Purchased Securities subject to the Transaction in the event the Transaction is recharacterized as a secured financing.
(c) The Seller will permit Buyer, or any designated representative thereof, to inspect such Seller’s records with respect to the Purchased Securities and the conduct and operation of its business related thereto upon reasonable prior written notice from Buyer, or any designated representative thereof, at such reasonable times and with reasonable frequency, and to make copies of extracts of any and all thereof.
(d) If the Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, the Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and deliver the same forthwith to Buyer in the exact form received, duly endorsed by the Seller to Buyer, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transaction. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by the Seller, the Seller shall promptly deliver such amounts to the Buyer.
(e) At any time from time to time upon prior written request of Buyer, at the sole expense of the Seller, the Seller 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 Purchased Securities 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, duly endorsed in a manner satisfactory to Buyer, to be held as a Purchased Security under the Transaction pursuant to this Agreement, and the documents delivered in connection herewith.
(f) If any amounts are required to be withheld for U.S. federal income tax purposes with respect to any payments to Buyer in connection with the Transaction effected by this Agreement, Seller shall so withhold (if so required) and shall make payments to Buyer so that the net amount received by Buyer after such withholding equals the amount Buyer would have received if such withholding were not required. The Buyer will deliver such form or forms as the Seller reasonably requests to minimize or avoid any such withholding.
(g) The Seller shall provide Buyer with the following financial and reporting information:
(i) Within 45 days after the last day of the first three fiscal quarters in any fiscal year, an unaudited statement of the Seller’s income and expenses for such quarter and assets and liabilities as of the end of such quarter; and
(ii) Within 90 days after the last day of its fiscal year, an audited statement of the Seller’s income and expenses for such year and assets and liabilities as of the end of such year.
(h) The Seller shall timely file all tax returns that are required to be filed by them and shall timely pay all taxes due, 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.
(i) The Seller shall give notice to the Buyer immediately after a responsible officer of the Seller has any knowledge of the occurrence of any Event of Default or Default.
(j) All information, reports, exhibits, schedules, financial statements or certificates of the Seller or any of its officers furnished to the Buyer hereunder and during the Buyer’s diligence of the Seller is and will be true and complete and not fail to disclose any material facts or omit to state any material fact necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements delivered by the Seller to the Buyer pursuant to this Agreement shall be prepared in accordance with GAAP, or as applicable, in the case of SEC filings, the appropriate SEC accounting requirements.
(k) If an Event of Default has been declared or deemed declared, the Seller shall cooperate reasonably with the Buyer.Trust;
Appears in 1 contract
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.)
