Covenants of the Company and the Servicer. The Company and the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that: (a) they shall not terminate the Agreement unless in compliance with the terms of the Agreement and the Supplement relating to each Outstanding Series; (b) they will (i) provide the Agent with evidence, satisfactory to the Agent, of the establishment of Series 1997-A Supplement computer back-up systems (in accordance with the time limits set forth in Schedule 3) and (ii) within 90 days of the Issuance Date, deliver to the Trustee executed copies of any landlord waivers (or the lease containing such waiver provisions), in a form reasonably acceptable to the Trustee, that may be necessary to grant to the Trustee access to any leased premises of the Servicer for which the Trustee may require access to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents; (c) they shall observe in all material respects each and every of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a party; (d) they shall afford the Agent or any representative of the Agent access to all records relating to the Receivables at any reasonable time during regular business hours, upon reasonable prior notice, for purposes of inspection and shall permit the Agent or any representative of the Agent to visit any of the Company's or the Servicer's, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject to the Company's or the Servicer's, as the case may be, normal security and confidentiality requirements and to discuss the business, operations, properties, financial and other conditions of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountants; provided that the Agent shall notify the Company or the Servicer, as the case may be, prior to any contact with such accountants and shall give the Company or the Servicer the opportunity to participate in such discussions; and (e) they shall not waive the provisions of subsections 7.01(d), (e)(i),(g) and (h)of the Receivables Sale Agreement without the consent of the Agent.
Appears in 1 contract
Samples: Pooling Agreement (American Axle & Manufacturing Holdings Inc)
Covenants of the Company and the Servicer. The Company ----------------------------------------- and the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in strict compliance with the terms of the Agreement and the each Supplement relating to each an Outstanding Series;
(b) they for so long as any of the VFC Certificates and interests therein are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will cause to be provided to any Holder of VFC Certificates or interests therein and any prospective purchaser of VFC Certificates or interests therein (i) provide the Agent with evidence, satisfactory to which prospective purchaser is designated by any Holder of VFC Certificates or the Agent, of the establishment of Series 1997-A Supplement computer back-up systems (in accordance with the time limits set forth in Schedule 3) and (ii) within 90 days of the Issuance Date, deliver to the Trustee executed copies of any landlord waivers (or the lease containing such waiver provisions), in a form reasonably acceptable to upon the Trusteerequest of such holder or prospective purchaser, that may be necessary to grant to the Trustee access to any leased premises of the Servicer for which the Trustee may require access to perform the collection and administrative functions information required to be performed provided to such holder or prospective purchaser by the Trustee Rule 144A(d)(4) under the Transaction Documents;Securities Act; and
(c) they shall observe in all material respects each and every of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a party;
(d) they shall afford the Agent or any representative of the Agent access to all records relating to the Receivables at any reasonable time during regular business hours, upon reasonable prior notice, for purposes of inspection and shall permit the each Agent or any representative of the such Agent to visit any of the Company's Company[_]s or the Servicer'sServicer[_]s, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject desired according to the Company's Company[_]s or the Servicer'sServicer[_]s, as the case may be, normal security and confidentiality requirements and to discuss the business, operations, properties, financial and other conditions of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountantsindependent certified public accountants; provided that the Agent shall notify the Company or the Servicer, as the -------- case may be, prior to any contact with such accountants and shall give the Company or the Servicer the opportunity to participate in such discussions; and
(e) they neither the Company nor the Servicer shall not waive take any action, nor permit any Seller to take any action, requiring the provisions satisfaction of subsections 7.01(d), (e)(i),(g) and (h)of the Receivables Sale Agreement Rating Agency Condition pursuant to any Transaction Document without the prior written consent of the AgentMajority Purchasers.
Appears in 1 contract
Covenants of the Company and the Servicer. The Company and the Servicer hereby agree, in addition to observing all their obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in compliance with the terms of the Agreement and the each Supplement relating to each an Outstanding Series;
(b) no later than 60 days after the date hereof, they will (i) provide the Agent with evidence, satisfactory deliver to the AgentTrustee executed copies of software licenses or sublicenses, in a form reasonably acceptable to the Trustee, which grant to the Trustee the right to utilize any of the establishment of Series 1997-A Supplement computer back-up systems (in accordance with software owned or licensed by the time limits set forth in Schedule 3) Servicer that is necessary to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents, (ii) within 90 days of the Issuance Date, deliver to the Trustee executed copies of any landlord waivers (or the lease containing such waiver provisions)waivers, in a form reasonably acceptable to the Trustee, that may be necessary to grant to the Trustee access to any the leased premises of the Servicer for which the Trustee may require access to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents;
(c) they shall observe in all material respects each and every of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a party;
(d) they shall afford the Agent or any representative of the Agent access to all records relating except to the Receivables at any reasonable time during regular business hours, upon reasonable prior notice, for purposes of inspection and shall permit the Agent or any representative of the Agent to visit any of the Company's or the Servicer's, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject to the Company's or the Servicer's, as the case may be, normal security and confidentiality requirements and to discuss the business, operations, properties, financial and other conditions of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountants; provided that the Agent shall notify extent the Company or the Servicer, as the case may be, prior owns such property and (iii) have taken all actions reasonably requested by the Trustee in connection with, and to ensure completion of, each of the Servicer Site Review and the Standby Liquidation System;
(c) for so long as any Term Certificates are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will cause to be provided to any contact with holder of Term Certificates or an interest therein and any prospective purchaser of Term Certificates or an interest therein (which prospective purchaser is designated by any holder of Term Certificates), upon the request of such accountants and shall give holder or prospective purchaser, the Company information required to be provided to such holder or prospective purchaser by Rule 144A(d)(4) under the Servicer the opportunity to participate in such discussionsSecurities Act; and
(ed) they shall not waive cooperate in good faith to allow the provisions of subsections 7.01(d), (e)(i),(g) Trustee to use the Servicer's available facilities and (h)of expertise upon the Receivables Sale Agreement without the consent of the AgentServicer's termination or default.
Appears in 1 contract
Covenants of the Company and the Servicer. The Company and the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in compliance with the terms of the Agreement and the Supplement relating to each Outstanding Series;
(b) they will (i) provide the Agent with evidence, satisfactory to the Agent, of the establishment of Series 1997-A Supplement computer back-up systems (in accordance with the time limits set forth in Schedule 3) and (ii) within 90 days of the Issuance Date, deliver to the Trustee executed copies of any landlord waivers (or the lease containing such waiver provisions), in a form reasonably acceptable to the Trustee, that may be necessary to grant to the Trustee access to any leased premises of the Servicer for which the Trustee may require access to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents;
(c) they shall observe in all material respects each and every of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a party;
(d) they shall afford the Agent or any representative of the Agent access to all records relating to the Receivables at any reasonable time during regular business hours, upon reasonable prior notice, for purposes of inspection and shall permit the Agent or any representative of the Agent to visit any of the Company's or the Servicer's, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject to the Company's or the Servicer's, as the case may be, normal security and confidentiality requirements and to discuss the business, operations, properties, financial and other conditions of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountants; provided that the Agent shall notify the Company or the Servicer, as the case may be, prior to any contact with such accountants and shall give the Company or the Servicer the opportunity to participate in such discussions; and
(e) they shall not waive the provisions of subsections 7.01(d), (e)(i),(g) and (h)of the Receivables Sale Agreement without the consent of the Agent.
Appears in 1 contract
Samples: Pooling Agreement (American Axle & Manufacturing Inc)
Covenants of the Company and the Servicer. The Company and the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in strict compliance with the terms of the Agreement and the each Supplement relating to each an Outstanding Series;
(b) no later than 30 days after the date hereof, they will (i) provide the Agent with evidence, satisfactory deliver to the AgentTrustee executed copies of software licenses or sublicenses, in a form reasonably acceptable to the Trustee, which grant to the Trustee the right to utilize any of the establishment of Series 1997-A Supplement computer back-up systems (in accordance with software owned or licensed by the time limits set forth in Schedule 3) Servicer that is necessary to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents, (ii) within 90 days of the Issuance Date, deliver to the Trustee executed copies of any landlord waivers (or the lease containing such waiver provisions)waivers, in a form reasonably acceptable to the Trustee, that may be necessary to grant to the Trustee access to any leased premises of the Servicer for which the Trustee may require access to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents, except to the extent the Company or the Servicer, as the case may be, owns such property and (iii) have taken all actions reasonably requested by the Trustee in connection with, and to ensure completion of, each of the Servicer Site Review and the Standby Liquidation System;
(c) for so long as any Term Certificates are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will cause to be provided to any holder of Term Certificates and any prospective purchaser of Term Certificates or an interest therein (which prospective purchaser is designated by any holder of Term Certificates), upon the request of such holder or prospective purchaser, the information required to be provided to such holder or prospective purchaser by Rule 144A(d)(4) under the Securities Act; and
(d) they shall observe in all material respects each and every of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a party;
(d) they shall afford the Agent or any representative of the Agent access to all records relating to the Receivables at any reasonable time during regular business hours, upon reasonable prior notice, for purposes of inspection and shall permit the Agent or any representative of the Agent to visit any of the Company's or the Servicer's, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject to the Company's or the Servicer's, as the case may be, normal security and confidentiality requirements and to discuss the business, operations, properties, financial and other conditions of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountants; provided that the Agent shall notify the Company or the Servicer, as the case may be, prior to any contact with such accountants and shall give the Company or the Servicer the opportunity to participate in such discussions; and
(e) they shall not waive the provisions of subsections 7.01(d), (e)(i),(g) and (h)of the Receivables Sale Agreement without the consent of the Agent.
Appears in 1 contract
Covenants of the Company and the Servicer. The Company and the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in compliance with the terms of the Agreement and the each Supplement relating to each an Outstanding Series;
(b) within 60 days of the date hereof, they will (i) provide the Agent with evidence, satisfactory deliver to the AgentTrustee executed copies of software licenses or sublicenses, in a form reasonably acceptable to the Trustee, which grant to the Trustee the right to utilize any of the establishment of Series 1997-A Supplement computer back-up systems (in accordance with software owned or licensed by the time limits set forth in Schedule 3) Servicer that is necessary to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents, (ii) within 90 days of the Issuance Date, deliver to the Trustee executed copies of any landlord waivers (or the lease containing such waiver provisions)waivers, in a form reasonably acceptable to the Trustee, that may be necessary to grant to the Trustee access to any the leased premises of the Servicer for which the Trustee may require access to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents;
, except to the extent the Company or the Servicer, as the case may be, owns such property and (iii) have taken all actions reasonably requested by the Trustee in connection with, and to ensure completion of, each of the Servicer Site Review and the Standby Liquidation System; (c) they shall observe in all material respects each and every of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a party;
(d) they shall afford the Funding Agent or any representative representatives of the Funding Agent access to all records relating to the Receivables at any reasonable time during regular business hours, upon reasonable prior noticenotice (and without prior notice if an Early Amortization Event has occurred), according to the Servicer's normal security and confidentiality requirements, for purposes of inspection and shall permit the Funding Agent or any representative of the Funding Agent to visit any of the Company's or the Servicer's, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject to the Company's or the Servicer's, as the case may be, normal security and confidentiality requirements and desired to discuss the business, operations, properties, financial and other conditions of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountantsindependent certified public accountants; provided PROVIDED that the Funding Agent shall notify the Company or the Servicer, as the case may be, prior to any contact with such accountants and shall give the Company or the Servicer the opportunity to participate in such discussions; and
(e) they shall not waive the provisions of subsections 7.01(d), (e)(i),(g) and (h)of the Receivables Sale Agreement without the consent of the Agent.;
Appears in 1 contract
Covenants of the Company and the Servicer. The Company (and, with respect to clauses (a),(g), (h), (l), (o), (s), (x) and (y), the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that:Servicer):
(a) they shall not terminate the Agreement unless comply with Anti-Corruption Laws and applicable Sanctions and shall maintain in effect and enforce policies and procedures designed to ensure compliance by it, its agents and their respective directors, managers, officers and employees (as applicable) with the terms of the Agreement Anti-Corruption Laws and the Supplement relating to each Outstanding Seriesapplicable Sanctions;
(b) they will shall promptly provide the Administrative Agent with any amendments to any of its constituent documents and shall not amend any of its constituent documents in any manner that could reasonably be expected to, or that does, adversely affect the Lenders in any material respect without the prior written consent of the Administrative Agent at the direction of the Required Financing Providers;
(c) shall not, without the prior consent of the Administrative Agent (acting at the direction of the Required Financing Providers), which consent may be withheld in the sole and absolute discretion of the Required Financing Providers, enter into any hedge agreement;
(d) shall not maintain any of its primary books or records with respect to the Collateral at any office other than at the address referred to on the Transaction Schedule (or at the office of the Collateral Agent) or maintain its chief executive office or its place of business at any place other than at such address, in each case without providing at least fifteen (15) days advance written notice to the Administrative Agent;
(e) shall not change its name, or name under which it does business, from the name shown on the signature pages hereto, unless it shall have provided ten (10) Business Days' advance written notice of such change to the Administrative Agent;
(f) shall at all times comply with the requirements of its constituent documents, including (in the case of the Company) Section 1.8 of the Limited Liability Company Agreement of the Company;
(g) shall at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business;
(h) shall comply with all applicable requirements of law (whether statutory, regulatory or otherwise), the noncompliance with which could reasonably be expected to have, individually or collectively, a material adverse effect on the Company, the Administrative Agent, the Lenders or the Collateral;
(i) provide shall not have any Subsidiaries without the Agent prior written consent of the Administrative Agent, and any entity that becomes a Subsidiary of the Company as a result of the Company's acquisition or receipt of equity interests in such entity as a distribution in connection with evidencea workout, satisfactory bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any obligor thereunder or issuer thereof or any entity formed to hold such equity interests;
(j) shall not fail to remain Solvent;
(k) shall ensure that (x) no ERISA Event occurs and (y) the Company is not subject to any Other Plan Law;
(l) shall take all actions necessary to maintain good and marketable title to the Portfolio Investments and the other Collateral, subject to only Permitted Liens;
(i) shall promptly furnish to the Administrative Agent, and the Administrative Agent shall furnish to the Lenders, copies of the establishment following financial statements, reports and information: (i) as soon as available and in any event within one hundred and twenty (120) days after the end of Series 1997each fiscal year of the Parent (beginning with the fiscal year ended December 31, 2024), consolidated audited financial statements of the Parent, audited by a firm of nationally recognized independent public accountants, as of the end of such fiscal year; provided, that the financial statements, reports and information required to be delivered pursuant to this clause (i) which are made available via XXXXX, or any successor system of the Securities Exchange Commission, in the Parent's annual report on Form 10-A Supplement computer backK, shall be deemed delivered to the Administrative Agent on the date such documents are made so available, (ii) as soon as available and in any event within sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of the Parent (beginning with the fiscal quarter ended September 30, 2024), quarterly unaudited financial information of the Parent; provided, that the financial statements, reports and information required to be delivered pursuant to this clause (ii) which are made available via XXXXX, or any successor system of the Securities Exchange Commission, in the Parent's annual report on Form 10-up systems Q, shall be deemed delivered to the Administrative Agent on the date such documents are made so available and (iii) from time to time, such other information or documents (financial or otherwise) as the Administrative Agent or the Required Financing Providers may reasonably request;
(ii) shall promptly furnish to the Administrative Agent no later than the date any financial statements are due pursuant to Section 6.02(m)(i), a compliance certificate, certified by a responsible officer of the Company to be true and correct, (i) stating whether any Default or Event of Default exists; (ii) stating that Company is in compliance with the covenants set forth in this Agreement, including a certification that the Collateral has been Delivered to the Collateral Agent; (iii) stating that the representations and warranties of Company contained in Article VI, or in any other Loan Document, or which are contained in any document furnished at any time or in connection herewith or therewith, are true and correct in all material respects on and as of the date thereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date; and (iv) certifying that such financial statements fairly present in all material respects, the financial condition and the results of operations of Company on the dates and for the periods indicated, on the basis of GAAP, subject, in the case of interim financial statements, to normally recurring year-end adjustments;
(n) shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all taxes, assessments and other governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company; provided that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment or charge, (i) the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which disputed amounts adequate reserves in accordance with GAAP have been made or (ii) the time limits failure of which to pay or discharge could not reasonably be expected to have a Material Adverse Effect on the Company;
(o) shall (x) permit the Administrative Agent to inspect its books and records during normal business hours with at least one (1) Business Day's prior written notice and (y) answer questions from the Administrative Agent and otherwise consult with the Administrative Agent with respect to any Portfolio Investment, and use commercially reasonable efforts to cause the Parent (if requested by the Administrative Agent) to participate in such consultation, with at least five (5) Business Day's prior written notice specifying in reasonable detail the subject matter to be discussed and the initial questions to be posed by the Administrative Agent;
(p) except as expressly set forth herein, shall not make any Restricted Payment, including, but not limited to, any payment pursuant to Section 4.03(h)(F) or Section 4.03(i)(F), without the prior written consent of the Administrative Agent; provided that the Company may make Permitted Distributions and Permitted Tax Distributions, without such consent;
(q) shall not make or hold any Investments, except the Portfolio Investments or Investments (A) constituting Eligible Investments, (B) that have been consented to by the Administrative Agent and (C) those the Company shall have acquired or received as a distribution in Schedule 3connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment, Eligible Investment or any issuer thereof;
(r) shall not enter into any agreement which prohibits the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired, other than the Loan Documents;
(s) shall not request any Advance, and the Company shall not directly, or to the knowledge of the Company, indirectly, use, and shall procure that its agents shall not directly, or to the knowledge of the Company, indirectly, use the proceeds of any Advance (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto;
(t) shall not purchase or otherwise acquire or receive as a distribution any commodities or any fee interest in real property or any equivalent interest in real property under any Applicable Law, except for such commodities or fee interest in real property as the Company shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any issuer thereof; provided that the Company shall disclose such acquisition or receipt of any such commodities or fee interest in real property to the Administrative Agent promptly following the acquisition or receipt thereof;
(u) shall post on a password protected website maintained by the Company to which the Administrative Agent will have access or deliver via email to the Administrative Agent, with respect to each obligor in respect of a Portfolio Investment, to the extent received by the Company pursuant to the Underlying Instruments in respect of each Portfolio Investment, the complete financial reporting package with respect to the related obligor (including all quarterly and annual financial statements, management discussion and analysis, executed covenant compliance certificates and related covenant calculations with respect to such obligor) and the annual budget provided to the Company, which delivery or posting shall be within five (5) Business Days of the Company's receipt of such information; provided that, with respect to any Portfolio Investment, to the extent that the Company has previously identified in writing to the Administrative Agent the names of the "disqualified lenders" (or similar term) pursuant to the documentation for such Portfolio Investment, neither the Administrative Agent nor any Lender shall provide any information provided to the Administrative Agent pursuant to this Section 6.02(u) with respect to such Portfolio Investment to any Lender or Participant (in any case, other than JPMCB or any of its Affiliates) who is such a "disqualified lender" (or similar term) with respect to such Portfolio Investment; provided, further, that the Administrative Agent shall be permitted to disclose to the Lenders and Participants the identities of the "disqualified lenders" (or similar term) for each Portfolio Investment;
(i) shall not elect to be classified as other than a disregarded entity or partnership for U.S. federal income tax purposes, nor shall the Company take any other action or actions that would cause it to be classified, taxed or treated as a corporation or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes (including transferring interests in the Company on or through an established securities market or secondary market (or the substantial equivalent thereof), within the meaning of Section 7704(b) of the Code (and Treasury regulations thereunder)) and (ii) within 90 days shall only have partners or owners that are treated as U.S. Persons or that are disregarded entities owned by a U.S. Person and shall not recognize the transfer of any interest in the Issuance DateCompany that constitutes equity for U.S. federal income tax purposes to a Person that is not a U.S. Person;
(w) on or before the Payment Date in April in each calendar year, shall deliver to the Trustee executed copies Administrative Agent (with a copy to the Collateral Agent) an officer's certificate of any landlord waivers the Company (or the lease containing such waiver provisions)Servicer on its behalf) stating that, in a form reasonably acceptable having made reasonable inquiries and to the Trusteebest of the knowledge, that may be necessary to grant information and belief of the Company, there does not exist, as of a date not more than five (5) days prior to the Trustee access to any leased premises date of the Servicer for which officer's certificate, nor has there existed at any time prior thereto since the Trustee may require access to perform date of the collection last officer's certificate, any Default hereunder, or, if there has been a Default hereunder, specifying each such Default and administrative functions to be performed by the Trustee under the Transaction Documentsnature and status thereof;
(cx) they shall observe in all material respects ensure that each and every Approval Request submitted for approval to the Administrative Agent pursuant to Section 1.02 hereof shall be a good faith request by the Company (or the Servicer on its behalf) for approval of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a partysuch Approval Request;
(dy) they shall afford the Agent or promptly upon any representative officer of the Agent access to all records relating Company or the Servicer obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to the Receivables Company or the Servicer with respect thereto and (ii) that any Portfolio Investment fails at any reasonable time during regular business hoursto satisfy the Eligibility Criteria, upon reasonable prior notice, for purposes shall deliver to the Administrative Agent (with a copy to the Collateral Agent) a certificate of inspection and shall permit the Agent or any representative an authorized officer of the Agent Company or the Servicer specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action the Company or the Servicer on its behalf has taken, is taking and proposes to visit take with respect thereto. Without duplication of any of the foregoing, the Company or the Servicer on its behalf shall provide a copy of any material written notice received by it from any obligor in respect of a Portfolio Investment within five (5) Business Days of the Company's or the Servicer's, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject 's receipt thereof; and
(z) shall provide to the Company's or Administrative Agent (x) as soon as available and in any event within ten (10) Business Days after the Servicer'send of each calendar quarter, as commencing after the case may becalendar month ending September, normal security 2024, the identity of each Portfolio Investment that is a Partial Deferrable Obligation and confidentiality requirements and the portion of interest payable under such Partial Deferrable Obligation that to discuss the business, operations, properties, financial and other conditions knowledge of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountants; provided that the Agent shall notify the Company or the Servicer, as the case may be, prior to any contact (after due inquiry) is actually being paid in kind rather than in cash (with such accountants update to be substantially in the form of Schedule 10 and shall give the Company or the Servicer the opportunity to participate in such discussions; and
(e) they shall not waive the provisions of subsections 7.01(d), (e)(i),(gwhich may be delivered via email) and (h)of y) from time to time, such other information or documents (financial or otherwise) as the Receivables Sale Agreement without Administrative Agent or the consent of the AgentRequired Financing Providers may reasonably request with respect to any Partial Deferrable Obligation.
Appears in 1 contract
Samples: Loan and Security Agreement (Bain Capital Private Credit)
Covenants of the Company and the Servicer. The Company (and, with respect to clauses (a),(g), (h), (l), (o), (s), (x) and (y), the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that:Servicer):
(a) they shall not terminate the Agreement unless comply with Anti-Corruption Laws and applicable Sanctions and shall maintain in effect and enforce policies and procedures designed to ensure compliance by it, its agents and their respective directors, managers, officers and employees (as applicable) with the terms of the Agreement Anti-Corruption Laws and the Supplement relating to each Outstanding Seriesapplicable Sanctions;
(b) they will shall promptly provide the Administrative Agent with any amendments to any of its constituent documents and shall not amend any of its constituent documents in any manner that could reasonably be expected to, or that does, adversely affect the Lenders in any material respect without the prior written consent of the Administrative Agent at the direction of the Required Financing Providers;
(c) shall not, without the prior consent of the Administrative Agent (acting at the direction of the Required Financing Providers), which consent may be withheld in the sole and absolute discretion of the Required Financing Providers, enter into any hedge agreement;
(d) shall not maintain any of its primary books or records with respect to the Collateral at any office other than at the address referred to on the Transaction Schedule (or at the office of the Collateral Agent) or maintain its chief executive office or its place of business at any place other than at such address, in each case without providing at least fifteen (15) days advance written notice to the Administrative Agent;
(e) shall not change its name, or name under which it does business, from the name shown on the signature pages hereto, unless it shall have provided ten (10) Business Days' advance written notice of such change to the Administrative Agent;
(f) shall at all times comply with the requirements of its constituent documents, including (in the case of the Company) Section 1.8 of the Amended and Restated Limited Liability Company Agreement of the Company;
(g) shall at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business;
(h) shall comply with all applicable requirements of law (whether statutory, regulatory or otherwise), the noncompliance with which could reasonably be expected to have, individually or collectively, a material adverse effect on the Company, the Administrative Agent, the Lenders or the Collateral;
(i) provide shall not have any Subsidiaries without the Agent prior written consent of the Administrative Agent, other than a Permitted Subsidiary and any entity that becomes a Subsidiary of the Company as a result of the Company's acquisition or receipt of equity interests in such entity as a distribution in connection with evidencea workout, satisfactory bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any obligor thereunder or issuer thereof or any entity formed to hold such equity interests;
(j) shall not fail to remain Solvent;
(k) shall ensure that no ERISA Event occurs;
(l) shall take all actions necessary to maintain good and marketable title to the Portfolio Investments and the other Collateral, subject to only Permitted Liens;
(m) shall promptly furnish to the Administrative Agent, and the Administrative Agent shall furnish to the Lenders, copies of the establishment following financial statements, reports and information: (i) as soon as available and in any event within one hundred and twenty (120) days after the end of Series 1997-A Supplement computer back-up systems each fiscal year of Parent (beginning with the fiscal year ended December 31, 2021), consolidated audited financial statements of Parent, audited by a firm of nationally recognized independent public accountants, as of the end of such fiscal year, (ii) as soon as available and in any event within sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of Parent (beginning with the fiscal quarter ended March 31, 2021), quarterly unaudited financial information of Parent and (iii) from time to time, such other information or documents (financial or otherwise) as the Administrative Agent or the Required Financing Providers may reasonably request;
(n) shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all taxes, assessments and other governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company; provided that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment or charge, (i) the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which disputed amounts adequate reserves in accordance with GAAP have been made or (ii) the time limits failure of which to pay or discharge could not reasonably be expected to have a Material Adverse Effect on the Company;
(o) shall (x) permit the Administrative Agent to inspect its books and records during normal business hours with at least one (1) Business Day's prior written notice and (y) answer questions from the Administrative Agent and otherwise consult with the Administrative Agent with respect to any Portfolio Investment, and use commercially reasonable efforts to cause Xxxx Capital Specialty Finance, Inc. and any other Parent Entity requested by the Administrative Agent to participate in such consultation, with at least five (5) Business Day's prior written notice specifying in reasonable detail the subject matter to be discussed and the initial questions to be posed by the Administrative Agent;
(p) except as expressly set forth herein, shall not make any Restricted Payments without the prior written consent of the Administrative Agent; provided that (i) the Company may make Permitted Distributions and Permitted Tax Distributions and (ii) the Company may make Restricted Payments from the Excluded Permitted Distribution Account, in Schedule 3either case, without such consent;
(q) shall not make or hold any Investments, except the Portfolio Investments or Investments (A) constituting Eligible Investments, (B) that have been consented to by the Administrative Agent and (C) those the Company or a Permitted Subsidiary shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment, Eligible Investment or any issuer thereof;
(r) shall not enter into any agreement which prohibits the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired, other than the Loan Documents;
(s) shall not request any Advance, and the Company shall not directly, or to the knowledge of the Company, indirectly, use, and shall procure that its agents shall not directly, or to the knowledge of the Company, indirectly, use the proceeds of any Advance (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto;
(t) shall not purchase or otherwise acquire or receive as a distribution any commodities or any fee interest in real property or any equivalent interest in real property under any Applicable Law, except for such commodities or fee interest in real property as the Company shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any issuer thereof; provided that the Company shall disclose such acquisition or receipt of any such commodities or fee interest in real property to the Administrative Agent promptly following the acquisition or receipt thereof;
(u) shall post on a password protected website maintained by the Company to which the Administrative Agent will have access or deliver via email to the Administrative Agent, with respect to each obligor in respect of a Portfolio Investment, to the extent received by the Company pursuant to the Underlying Instruments in respect of each Portfolio Investment, the complete financial reporting package with respect to the related obligor (including all quarterly and annual financial statements, management discussion and analysis, executed covenant compliance certificates and related covenant calculations with respect to such obligor) and the annual budget provided to the Company, which delivery or posting shall be within five (5) Business Days of the Company's receipt of such information; provided that, with respect to any Portfolio Investment, to the extent that the Company has previously identified in writing to the Administrative Agent the names of the "disqualified lenders" (or similar term) pursuant to the documentation for such Portfolio Investment, neither the Administrative Agent nor any Lender shall provide any information provided to the Administrative Agent pursuant to this Section 6.02(u) with respect to such Portfolio Investment to any Lender or Participant (in any case, other than JPMCB or any of its Affiliates) who is such a "disqualified lender" (or similar term) with respect to such Portfolio Investment; provided, further, that the Administrative Agent shall be permitted to disclose to the Lenders and Participants the identities of the "disqualified lenders" (or similar term) for each Portfolio Investment;
(i) shall not elect to be classified as other than a disregarded entity or partnership for U.S. federal income tax purposes, nor shall the Company take any other action or actions that would cause it to be classified, taxed or treated as a corporation or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes (including transferring interests in the Company on or through an established securities market or secondary market (or the substantial equivalent thereof), within the meaning of Section 7704(b) of the Code (and Treasury regulations thereunder) and (ii) within 90 days shall only have partners or owners that are treated as U.S. Persons or that are disregarded entities owned by a U.S. Person and shall not recognize the transfer of any interest in the Issuance DateCompany that constitutes equity for U.S. federal income tax purposes to a Person that is not a U.S. Person;
(w) on or before the Payment Date in April in each calendar year, shall deliver to the Trustee executed copies Administrative Agent (with a copy to the Collateral Agent) an officer's certificate of any landlord waivers the Company (or the lease containing such waiver provisions)Servicer on its behalf) stating that, in a form reasonably acceptable having made reasonable inquiries and to the Trusteebest of the knowledge, that may be necessary to grant information and belief of the Company, there does not exist, as of a date not more than five (5) days prior to the Trustee access to any leased premises date of the Servicer for which officer's certificate, nor has there existed at any time prior thereto since the Trustee may require access to perform date of the collection last officer's certificate, any Default hereunder, or, if there has been a Default hereunder, specifying each such Default and administrative functions to be performed by the Trustee under the Transaction Documentsnature and status thereof;
(cx) they shall observe in all material respects ensure that each and every Approval Request submitted for approval to the Administrative Agent pursuant to Section 1.02 hereof shall be a good faith request by the Company (or the Servicer on its behalf) for approval of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a partysuch Approval Request;
(dy) they shall afford the Agent or promptly upon any representative officer of the Agent access to all records relating Company or the Servicer obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to the Receivables Company or the Servicer with respect thereto and (ii) that any Portfolio Investment fails at any reasonable time during regular business hoursto satisfy the Eligibility Criteria, upon reasonable prior notice, for purposes shall deliver to the Administrative Agent (with a copy to the Collateral Agent) a certificate of inspection and shall permit the Agent or any representative an authorized officer of the Agent Company or the Servicer specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action the Company or the Servicer on its behalf has taken, is taking and proposes to visit take with respect thereto. Without duplication of any of the foregoing, the Company or the Servicer on its behalf shall provide a copy of any material written notice received by it from any obligor in respect of a Portfolio Investment within five (5) Business Days of the Company's or the Servicer's's receipt thereof;
(z) shall ensure that the LuxCo Subsidiary (i) maintains its central administration (administration centrale) and, as for the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject to the Company's or the Servicer's, as the case may be, normal security and confidentiality requirements and to discuss the business, operations, properties, financial and other conditions purposes of the Company or EU Insolvency Regulation, the Servicer with their respective officers and employees and with their Independent Public Accountants; provided that centre of its main interests (centre des intérêts principaux) at the Agent shall notify the Company or the Servicer, as the case may be, prior to any contact with such accountants place of its registered office (siège statutaire) in Luxembourg and shall give have no establishment (as defined in the Company or the Servicer the opportunity to participate in such discussions; and
(e) they shall not waive the provisions of subsections 7.01(d), (e)(i),(g) and (h)of the Receivables Sale Agreement without the consent of the Agent.EU Insolvency
Appears in 1 contract
Samples: Loan and Security Agreement (Bain Capital Specialty Finance, Inc.)
Covenants of the Company and the Servicer. The Company and the Servicer hereby agree, in addition to their obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in compliance with the terms of the Agreement and the each Supplement relating to each an Outstanding Series;
(b) within 60 days of the date hereof, they will (i) provide the Agent with evidence, satisfactory deliver to the AgentTrustee executed copies of software licenses or sublicenses, in a form reasonably acceptable to the Trustee, which grant to the Trustee the right to utilize any of the establishment of Series 1997-A Supplement computer back-up systems (in accordance with software owned or licensed by the time limits set forth in Schedule 3) Servicer that is necessary to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents, (ii) within 90 days of the Issuance Date, deliver to the Trustee executed copies of any landlord waivers (or the lease containing such waiver provisions)waivers, in a form reasonably acceptable to the Trustee, that may be necessary to grant to the Trustee access to any the leased premises of the Servicer for which the Trustee may require access to perform the collection and administrative functions to be performed by the Trustee under the Transaction Documents, except to the extent the Company or the Servicer, as the case may be, owns such property and (iii) have taken all actions reasonably requested by the Trustee in connection with, and to ensure completion of, each of the Servicer Site Review and the Standby Liquidation System;
(c) they shall observe in all material respects each and every of their respective covenants (both affirmative and negative) contained in the Agreement, the Servicing Agreement, this Supplement and all other Transaction Documents to which each is a party;
(d) they shall afford the Funding Agent or any representative representatives of the Funding Agent access to all records relating to the Receivables at any reasonable time during regular business hours, upon reasonable prior noticenotice (and without prior notice if an Early Amortization Event has occurred), according to the Servicer's normal security and confidentiality requirements, for purposes of inspection and shall permit the Funding Agent or any representative of the Funding Agent to visit any of the Company's or the Servicer's, as the case may be, offices or properties during regular business hours and as often as may reasonably be requested, subject to the Company's or the Servicer's, as the case may be, normal security and confidentiality requirements and desired to discuss the business, operations, properties, financial and other conditions of the Company or the Servicer with their respective officers and employees and with their Independent Public Accountantsindependent certified public accountants; provided that the Funding Agent shall notify the Company or the Servicer, as the case may be, prior to any contact with such accountants and shall give the Company or the Servicer the opportunity to participate in such discussions;
(d) neither the Company nor the Servicer shall take any action, nor permit any Seller to take any action, requiring the satisfaction of the Rating Agency Condition pursuant to any Transaction Document without the prior written consent of the Majority Purchasers; and
(e) they it shall not waive cooperate in good faith to allow the provisions of subsections 7.01(d), (e)(i),(g) Trustee to use the Servicer's available facilities and (h)of expertise upon the Receivables Sale Agreement without the consent of the AgentServicer's termination or default.
Appears in 1 contract
