Covenants of the Bank and Funding and WFS Sample Clauses

Open Split View

Download

Share

Cite

Covenants of the Bank and Funding and WFS 

Sample 1

Save

Copy

Related to Covenants of the Bank and Funding and WFS

• Representations and Covenants of the Company The Company makes the following representations and covenants in order to induce the Agency to proceed with the Project: a. The Company is a business corporation duly formed and validly existing under the laws of the State of New York, has the authority to enter into this Agreement, and has duly authorized the execution and delivery of this Agreement. b. Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the provisions of this Agreement will conflict with or result in a breach of any of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Company is a party or by which it is bound, or will constitute a default under any of the foregoing, or result in the creation or imposition of any lien of any nature upon any of the property of the Company under the terms of any such instrument or agreement. c. The Project and the operation thereof will conform with all applicable zoning, planning, building and environmental laws and regulations of governmental authorities having jurisdiction over the Project, and the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to comply with the provisions of this subsection. d. There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or, to the knowledge of the Company, threatened against or affecting the Company, to which the Company is a party, an in which an adverse result would in any way diminish or adversely impact on the Company’s ability to fulfill its obligations under this Agreement. e. The Company covenants that the Project will comply in all respects with all environmental laws and regulations, and, except in compliance with environmental laws and regulations, (i) that no pollutants, contaminants, solid wastes, or toxic or hazardous substances will be stored, treated, generated, disposed of, or allowed to exist at the Project except in compliance with all material applicable laws, (ii) the Company will take all reasonable and prudent steps to prevent an unlawful release of hazardous substances at the Project or onto any other property,

• 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 Representatives 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 during the period referred to in Section 5(D) which, in the judgment of the Sponsor, 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 Notes, the Sponsor will not file any amendment to the Registration Statement or any amendment, supplement or revision to either the Preliminary Prospectus, any Free Writing Prospectus or to the Prospectus, unless the Sponsor 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. The Sponsor 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 Securities 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 Securities 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 Notes as contemplated in this Agreement and the other Agreements, the Registration Statement, any Free Writing Prospectus and the Prospectus. If at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the 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 Securities Act or the Rules and Regulations, the Sponsor 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, the Sponsor will use its best efforts to have such amendment or new registration statement declared effective as soon as practicable and the Depositor 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 Depositor will use its best efforts, in cooperating with the Sponsor and the Underwriters, to qualify the 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 Notes. The Depositor will cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been so qualified. G. The Depositor will not, without the prior written consent of the Representatives, contract to sell any automobile receivables-backed certificates, automobile receivables-backed notes or other similar securities either directly or indirectly (as through the Sponsor) for a period of five (5) business days after the later of the termination of the syndicate or the Closing Date. H. So long as the 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 Indenture Trustee: (i) any annual statements as to compliance of the Servicer (and any subservicer) and any annual assessments of compliance with the terms of the Servicing Agreement delivered to the Indenture Trustee pursuant to the Servicing Agreement, (ii) the annual accountants’ attestations in respect of the annual assessments of compliance and any other statement of a firm of independent public accountants furnished to the Indenture Trustee pursuant to the terms of the Servicing Agreement, and (iii) the monthly reports furnished to the Noteholders pursuant to the Servicing Agreement. I. So long as any of the Notes are outstanding, the Companies will, upon request of any Underwriter, furnish to such Underwriter (i) all documents distributed or required to be distributed by it to the holders of the Notes pursuant to the Indenture as soon as such statements and reports are furnished to such holders, (ii) any filings with the Commission pursuant to the Exchange Act, or any order of the Commission thereunder, with respect to any securities issued by any of the GMF Companies or the Trust that are either the Notes or non-structured equity or debt offered by any of the GMF Companies, and (iii) from time to time, any other information concerning the GMF Companies or the Trust as the Underwriters may reasonably request in writing. J. It will apply the net proceeds from the sale of the Notes in the manner set forth in the Preliminary Prospectus and the Prospectus. K. 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 Depositor or the Sponsor, there has been any material change, or any development involving a prospective material change in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Sponsor or the Depositor, the Sponsor will give prompt written notice thereof to the Underwriters. L. To the extent, if any, that the ratings provided with respect to the Notes by the rating agency or agencies that initially rate the 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. M. Each of the GMF Companies will comply with the 17g-5 Representations made by the Sponsor to Fitch and S&P with respect to the Notes. The GMF 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 Representatives. N. The Depositor, as registrant, will file a certification executed by the chief executive officer of GMF Leasing LLC (the “CEO Certification”) with the Commission in accordance with Item 601(b)(36) of Regulation S-K. O. The Sponsor will comply with all requirements imposed on the “sponsor of a securitization transaction” in accordance with the Credit Risk Retention Rules, and will cause the Depositor and each other affiliate of GM Financial to comply with all applicable requirements of the Credit Risk Retention Rules, in each case with respect to the transactions contemplated by the Agreements and for the period of time required by the Credit Risk Retention Rules, and without any impermissible sale, transfer, financing, hedging or pledging of the Retained Interest. The Sponsor is and will be solely responsible for 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.

• Negative Covenants of the Company Except as otherwise required or expressly contemplated by this Agreement or consented to in writing by Buyer, the Company will not and will not permit any of its Subsidiaries to, from the date hereof until the Effective Time: (a) split, combine, or reclassify any shares of its capital stock or make any other changes in its equity capital structure; (b) purchase, redeem, or otherwise acquire, directly or indirectly, any shares of its capital stock or any options, rights, or warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock; (c) declare, set aside, or pay any dividend or make any other distribution in respect of shares of its capital stock; (d) amend its charter, bylaws, or similar organizational documents; (e) issue any shares of its capital stock or any options, rights, or warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock, except for issuances of shares of Company Common Stock upon the exercise of any options or of any Rights under the Rights Agreement, or designate any class or series of capital stock from its authorized but undesignated preferred stock; (f) purchase any capital assets or make any capital expenditures (except as set forth in the Company's current capital expenditures budget, a copy of which has been delivered to Buyer) in excess of $250,000 in the aggregate, purchase any business, purchase any stock of any corporation, or merge or consolidate with any person; (g) sell, lease, license, encumber or otherwise dispose of any assets or properties, other than in the ordinary course of business consistent with past practice, which sales, leases, licenses, encumbrances or other dispositions of assets other than inventory, in any event, are not material to the Company and its Subsidiaries, taken as a whole; (h) incur, assume, or guarantee any indebtedness for money borrowed other than (i) borrowings incurred for working capital purposes under the Company's existing revolving credit facility or (ii) intercompany indebtedness; (i) enter into any new Benefit Plan or program or severance or employment agreement, modify in any respect any existing Benefit Plan or program (except as required by law) or any existing employment or severance agreement, or, except as required under existing agreements or in the ordinary course of business consistent with past practice, grant any increases in compensation or benefits of any Company Employee, officer or director; (j) enter into any collective bargaining agreement or enter into any substantive negotiations with respect to any collective bargaining agreement, except as required by law; (k) change or modify in any material respect any existing accounting method, principle, or practice, other than as required by GAAP; (l) enter into any new Company Material Contract (other than in the ordinary course of business consistent with past practice), or modify in any respect adverse to the Company or any of its Subsidiaries any existing Company Material Contract; (m) fund or take any action to cause a rabbi trust to be funded; (n) agree to pay R. Xxxxx Xxxxxx a transaction bonus of more than $5,000; (o) except as expressly provided in the amendment thereto dated May 30, 2001, change, modify or commence a new phase pursuant to the Company Stock Purchase Plan; (p) (i) pay, discharge, settle or satisfy any material claims against the Company or its Subsidiaries (including claims of shareholders), liabilities or obligations (whether absolute, accrued, contingent or otherwise), other than (x) the payment, discharge, settlement or satisfaction of such claim, liability or obligation in the ordinary course of business consistent with past practice, (y) modifications, refinancings or renewals of existing indebtedness as permitted by the terms thereof as in effect on the date of this Agreement, or (z) the payment, discharge, settlement or satisfaction of claims, liabilities or obligations reflected or reserved against in the most recent audited financial statements (or the notes thereto) of the Company included in the Company SEC Reports (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, or (ii) waive, release, grant or transfer any right of material value, other than in the ordinary course of business consistent with past practice; (q) enter into any agreement with any of their respective affiliates (other than wholly owned Subsidiaries of the Company); (r) (i) relinquish, waive or release any material contractual or other right or claim of the Company or its Subsidiaries, or (ii) knowingly dispose of or permit to lapse any rights in any material Company Proprietary Rights or knowingly disclose to any person not an employee of, or consultant or adviser to, the Company or any of its Subsidiaries of the Company or otherwise knowingly dispose of any trade secret, process or knowhow not a matter of public knowledge prior to the date of this Agreement, except pursuant to judicial order or process or commercially reasonable disclosures in the ordinary course of business consistent with past practice or pursuant to any existing contract or agreement; (s) except pursuant to the fiduciary duties of the Board of Directors of the Company as set forth in Sections 7.01(a) and (b), or as expressly permitted pursuant to Sections 7.02 or 9.01, take any action or omit to take any action that would or is reasonably likely to (i) result in any of the conditions to the Merger set forth in Article VIII not being satisfied, or (ii) prevent, materially delay or materially impede the consummation of the Merger; or (t) enter into any commitment to do any of the foregoing.

• Covenants of the Company The Company covenants and agrees as follows:

• Covenants of the Loan Parties Section 5.01 Affirmative Covenants 76 Section 5.02 Negative Covenants 80 Section 5.03 Reporting Requirements 86 Section 5.04 Financial Covenants 89

• Representations and Warranties of the Company Covenants of the Company (A) Representations of the Company. With respect to the Placement Agent Securities, each of the representations and warranties (together with any related disclosure schedules thereto) and covenants made by the Company to the Purchasers in the Purchase Agreement in connection with the Placement, is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of the Closing Date, hereby made to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that there are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the knowledge of the Company, any five percent (5.0%) or greater stockholder of the Company, except as set forth in the Purchase Agreement and SEC Reports.

• REPRESENTATIONS AND WARRANTIES OF THE COMPANIES To induce each Lender and the Agent to execute and deliver this Agreement, each Company represents, warrants and covenants that: (a) The execution, delivery and performance by each Company of this Agreement and all documents and instruments delivered in connection herewith have been duly authorized by all necessary corporate action required on its part, and this Agreement and all documents and instruments delivered in connection herewith are legal, valid and binding obligations of such Company enforceable against such Company in accordance with its terms except as the enforcement thereof may be subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (b) Except with respect to the Existing Events of Default, each of the representations and warranties set forth in the Transaction Documents is true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date hereof as if made on the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date, and each of the agreements and covenants in the Transaction Documents is hereby reaffirmed with the same force and effect as if each were separately stated herein and made as of the date hereof. (c) Neither the execution, delivery and performance of this Agreement and all documents and instruments delivered in connection herewith nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of any Company’s corporate charter, bylaws, operating agreement or other governing documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality or (iii) any mortgage, deed of trust, lease, agreement or other instrument to which any Company is a party, or by which any Company or its property is bound. (d) As of the date of this Agreement, except for the Existing Events of Default, no Event of Default has occurred or is continuing under this Agreement or any other Transaction Document. (e) The Agent’s and the Lender’s security interests in the Collateral continue to be valid, binding and enforceable first-priority security interests which secure the obligations under the Transaction Documents and no tax or judgment liens are currently on record against any Company. (f) Except with respect to the Existing Events of Default, any misrepresentation of a Company, or any failure of a Company to comply with the covenants, conditions and agreements contained in any agreement, document or instrument executed or delivered by any Company with, to or in favor of any Company shall constitute a Forbearance Default hereunder and an immediate Event of Default under the Financing Agreement. (g) The recitals in this Agreement are true and correct.

• REPRESENTATIONS BY AND COVENANTS OF THE COMPANY The Company hereby represents and warrants to the Subscriber that:

• Particular Covenants of the Company The Company hereby covenants and agrees as follows:

• Representations and Warranties of the Company and the Operating Partnership The Company and the Operating Partnership hereby jointly and severally represent, warrant and covenant to each Underwriter, as of the date of this Agreement, as of the First Closing Date (as hereinafter defined) and as of each Option Closing Date (as hereinafter defined), if any, as follows: