Covenants of the Companies Each of the Companies covenants with the Underwriters as follows:
A. Subject to Section 5.B, it will comply with the requirements of Rules 424(b) and 430D and will notify the Representative immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission relating to the Registration Statement, any Free Writing Prospectus, the Preliminary Prospectus or the Prospectus, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Free Writing Prospectus or the Preliminary Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, and (v) the happening of any event at any time when a Preliminary Prospectus or Prospectus relating to the Notes is required to be delivered under the Act, which, in the judgment of GMF, makes the Registration Statement or the Prospectus contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Companies will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain as soon as possible the lifting thereof.
B. Prior to the termination of the offering of the Offered Notes, neither GMF nor the Seller will file any amendment to the Registration Statement or any amendment, supplement or revision to the Preliminary Prospectus, any Free Writing Prospectus or to the Prospectus, unless GMF has furnished the Underwriters with a copy for their review prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Underwriters shall reasonably object.
C. It has furnished or will deliver to the Underwriters and counsel for the Underwriters, without charge, a signed copy of the Original Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and a signed copy of all consents and certificates of experts, and will also deliver to the Underwriters, without charge, a conformed copy of the Original Registration Statement and of each amendment thereto (without exhibits) for the Underwriters. The copies of the Original Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
D. GMF will deliver to the Underwriters, without charge, electronic copies of the Preliminary Prospectus, each Free Writing Prospectus and the Prospectus, and hereby consents to the use of such electronic copies for purposes permitted by the Act. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
E. It will comply with the Act and the Rules and Regulations, the Exchange Act and the rules and regulations thereunder and the Trust Indenture Act and the rules and regulations thereunder so as to permit the completion of the distribution of the Offered Notes as contemplated in this Agreement, the Transaction Documents, the Registration Statement, any Free Writing Prospectus and the Prospectus. If at any time when a prospectus is required by the Act to be delivered in connection with sales of the Offered Notes, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel to the Companies, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Act or the Rules and Regulations, GMF will promptly prepare and file with the Commission, subject to the review and approval provisions afforded to the Underwriters described in Section 5.B, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Preliminary Prospectus or the Prospectus comply with such requirements, GMF will use its best efforts to have such amendment or new registration statement declared effective as soon as practicable and the Seller will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request. Any such filing shall not operate as a waiver or limitation of any right of the Underwriters hereunder.
F. The Seller will use its best efforts, in cooperating with GMF and the Underwriters, to qualify the Offered Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate, and maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Offered Notes. The Seller will cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Offered Notes have been so qualified.
G. [Reserved].
H. [Reserved].
I. The Seller, as registrant, shall file with the Commission a certification executed by the chief executive officer of the Seller in accordance with Item 601(b)(36) of Regulation S-K (the “CEO Certification”).
J. So long as the Offered Notes remain outstanding, the Companies will, upon the request of any Underwriter, deliver to such Underwriter as soon as such statements are furnished to the Trustee: (i) any annual statements as to compliance of the Servicer (and any subservicer), any annual assessments of compliance and any annual accountants attestations, each as delivered to the Trustee pursuant to the Sale and Servicing Agreement and (ii) the monthly reports furnished to the Noteholders pursuant to the Sale and Servicing Agreement.
K. So long as any of the Offered Notes are outstanding, the Companies, upon the request of any Underwriter, will furnish to such Underwriter (i) as soon as practicable after the end of the fiscal year of the Trust, all documents required to be distributed to Noteholders and other filings with the Commission pursuant to the Exchange Act, or any order of the Commission thereunder with respect to the Notes and (ii) from time to time, any other information concerning the Companies filed with any government or regulatory authority which is otherwise publicly available, as such Underwriter may reasonably request in writing.
L. It will apply the net proceeds from the sale of the Offered Notes in the manner set forth in the Preliminary Prospectus and the Prospectus.
M. If, between the date hereof or, if earlier, the dates as of which information is given in the Preliminary Prospectus, and the Closing Date, to the knowledge of the Seller or GMF, there has been any material change, or any development involving a prospective material change in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of GMF or the Seller, GMF will give prompt written notice thereof to the Underwriters.
N. To the extent, if any, that the ratings provided with respect to the Offered Notes by the rating agency or agencies that initially rate the Offered Notes are conditional upon the furnishing of documents or the taking of any other actions by the Companies, the Companies will use their best efforts to furnish or cause to be furnished such documents and take any such other actions.
O. From the date hereof until the Closing Date, none of the Seller, GMF or any of their respective Affiliates will, without the prior written consent of the Representative, directly or indirectly, offer, sell or contract to sell or announce the offering of, in a public or private transaction which utilizes an offering document similar to the Prospectus, any other securities collateralized by retail automobile loan contracts of similar aggregate credit quality as the Receivables.
P. None of GMF, the Seller, or any Affiliate thereof, or any person acting on its or any of their behalf (other than the Underwriters or their respective Affiliates (as defined under Rule 405 of the Act)) has entered into or will enter into any contractual arrangement with respect to the distribution of the Offered Notes except for this Agreement.
Q. The Seller will cooperate with the Representative and use its best efforts to permit the Offered Notes to be eligible for clearance and settlement through DTC.
R. Each of the Companies will comply with the 17g-5 Representations made by GMF to the Engaged NRSROs with respect to the Offered Notes. The Companies and the Trust will timely comply with all requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act to the satisfaction of the Representative.
S. GMF will comply, and will cause each of its affiliates, including any Majority-Owned Affiliate, to comply, with all applicable requirements under the Credit Risk Retention Rules imposed on the “sponsor of a securitization transaction” for so long as those requirements are applicable, including retaining the Residual Interest and any required amount of the Notes in an amount not less than required by the Credit Risk Retention Rules and for the period of time required by the Credit Risk Retention Rules, without any impermissible hedging, transfer or financing of the Residual Interest or any such Notes. GMF is and will be solely responsible for compliance with the disclosure requirements of the Credit Risk Retention Rules, including the contents of all such disclosures and ensuring that any required post-closing disclosures are timely provided to investors by an appropriate method that does not require any involvement of the Underwriters.
Operating Covenants From the Execution Date until the Closing or, if earlier, the termination of this Agreement as contemplated hereby, except (t) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) Sellers will:
(i) subject to any Bankruptcy Court order to the contrary, operate the Assets in the Ordinary Course of Business;
(ii) maintain or cause its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices;
(iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge;
(iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and
(v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and
(b) no Seller shall:
(i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets;
(ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect;
(iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted;
(iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or
(v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.