Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion: (i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item; (ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser; (iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents; (iv) intentionally omitted; (v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement); (vi) permit a Change of Control; (vii) intentionally omitted; (viii) consent or assent to any Significant Modification other than in accordance with Article 29; (ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect; (x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; (xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder; (xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and (xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 4 contracts
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.), Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.), Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Negative Covenants of Seller. On From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written consent of Buyer shall have been obtained, and except as otherwise expressly contemplated herein, Seller covenants and agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of the following:
(a) amend the Articles of Incorporation, Bylaws, or other governing instruments of any Seller Entity;
(b) incur any additional debt obligation or other obligation for borrowed money in excess of an aggregate of $500,000 except in the ordinary course of the business of any Seller Entity consistent with past practices and that have maturities of one year or less, prepayable without penalty, charge, or other payment (which exception shall include, for Seller Entities that are depository institutions, creation of retail deposit liabilities, purchases of federal funds, variable rate advances with maturities of one year or less, prepayable without penalty, charge, or other payment, from the Federal Reserve Bank or Federal Home Loan Bank , and entry into variable rate repurchase agreements fully secured by U.S. government securities or U.S. government agency securities with maturities of one year or less, prepayable without penalty, charge, or other payment), or impose, or suffer the imposition, on any Asset of any Seller Entity of any Lien or permit any such Lien to exist (other than in connection with public deposits, repurchase agreements, bankers’ acceptances, “treasury tax and loan” accounts established in the ordinary course of business of Subsidiaries that are depository institutions, the satisfaction of legal requirements in the exercise of trust powers, and Liens in effect as of the date hereof and at all times while this Agreement or that are disclosed in the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased ItemDisclosure Memorandum);
(iic) at any time a Transaction is outstanding with respect to any Purchased Assetrepurchase, transferredeem, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, acquire or pledge or hypothecateexchange (other than in the ordinary course under employee benefit plans), directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchasershares, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter securities convertible into any transaction shares, of merger or consolidation or amalgamationthe capital stock of any Seller Entity, or liquidate, wind up declare or dissolve itself (or suffer pay any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, dividend or make any other distribution in respect thereofof Seller’s capital stock except for the payment of quarterly cash dividends in the ordinary course of business consistent with past practice, which shall be paid in the same week of the month as the previous year and shall not exceed the amount of previously declared dividends.
(d) except for this Agreement and other than in connection with the exercise of outstanding Seller Options, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Seller Common Stock, any other capital stock of any Seller Entity, or any Right;
(e) adjust, split, combine, or reclassify any capital stock of any Seller Entity or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Seller Common Stock, or sell, lease, mortgage, or otherwise dispose of (i) any shares of capital stock of any Seller Subsidiary or (ii) any Asset other than in the ordinary course of business for reasonable and adequate consideration;
(f) except for purchases of U.S. Government securities or U.S. Government agency securities, which in either case have base durations of two years or less and maximum extension of three years (assuming a +300bps scenario), purchase any securities or make any material investment (except in the ordinary course of business consistent with past practice; provided, however that Seller will provide Buyer notice of any purchases with base durations that exceed two years and maximum extension exceeding three years (assuming a +300bps scenario)), either by purchase of stock or securities, contributions to capital, Asset transfers, or purchase of any Assets, in any Person other than a wholly owned Seller Subsidiary, or otherwise acquire direct or indirect control over any Person, other than in connection with foreclosures in the ordinary course of business;
(i) except as contemplated by this Agreement, grant any bonus in excess of an aggregate $25,000 or increase the compensation or benefits to the employees, officers or directors of any Seller Entity (except in accordance with past practice and as disclosed on Schedule 6.2(g)), (ii) commit to pay any severance or termination pay, or any stay or other bonus to any Seller director, officer or employee (except for payments according to the Officer Service Agreements), (iii) enter into or amend any severance agreements with officers, employees, directors, independent contractors, or agents of any Seller Entity, (iv) change any compensation or other benefits to directors of any Seller Entity, or (v) except as contemplated by this Agreement and as disclosed in Section 3.15(j) of the Seller Disclosure Memorandum, waive any stock repurchase rights, accelerate, amend, or change the period of exercisability of any Rights or restricted stock, or reprice Rights granted under the Seller Benefit Plans or authorize cash payments in exchange for any Rights; or (vi) except as disclosed in Section 3.15(j) of the Seller Disclosure Memorandum, accelerate or vest or commit to accelerate or vest any amounts, benefits or rights payable by any Seller Entity;
(h) enter into or amend any employment Contract between any Seller Entity and any Person (unless such amendment is required by Law) that the Seller Entity does not have the unconditional right to terminate without Liability (other than Liability for services already rendered), at any time on or after the Effective Time;
(i) adopt any new Employee Benefit Plan of any Seller Entity or terminate or withdraw from, or make any material change in or to, any existing Seller Employee Benefit Plans, other than any such change that is required by Law or to maintain continuous benefits at current levels or that, in the written opinion of counsel, is necessary or advisable to maintain the tax qualified status of any such plan, or make any distributions from such Employee Benefit Plans, except as required by Law or as contemplated by this Agreement, the terms of such plans or consistent with past practice;
(j) make any change in any Tax or accounting methods or systems of internal accounting controls, except as may be appropriate and necessary to conform to changes in Tax Laws, regulatory accounting requirements, or GAAP;
(k) commence any Litigation other than in accordance with past practice or settle any Litigation involving any Liability of any Seller Entity for over $50,000 in money damages or restrictions upon the operations of any Seller Entity; provided, that, Buyer shall not unreasonably withhold, condition or delay such consent;
(l) enter into, modify, amend, or terminate any Contract other than (i) with respect to those involving aggregate payments of less than, or the provision of goods or services with a market value of less than, $50,000 per annum; provided that such contracts have a term of one year or less and do not contain provisions prohibiting or restricting Seller or any of its Subsidiaries from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person and (ii) Contracts covered by Section 5.2(m);
(m) make, renegotiate, renew, increase, extend, modify or purchase any loan, lease (credit equivalent), advance, credit enhancement or other extension of credit, or make any commitment in respect of any of the foregoing, except, with respect to any extension of credit with total relationship exposure of less than $4,000,000 fully secured, total relationship exposure of less than $250,000 unsecured, or less than $500,000 of incremental secured credit exposure to an existing relationship, provided that such extensions of credit are in the ordinary course of business consistent with past practice and in conformity with existing lending policies and practices, or waive, release, compromise, or assign any material rights or claims, or make any material adverse changes in the mix, rates, terms, or maturities of Seller’s deposits and other Liabilities;
(n) except for loans or extensions of credit made on terms generally available to the public, make or increase any loan or other extension of credit, or commit to make or increase any such loan or extension of credit, to any director or executive officer of Seller or First Bank, or any entity controlled, directly or indirectly, whether in cash by any of the foregoing, other than renewals of existing loans or property or in obligations of Sellercommitments to loan;
(xii) other than in the ordinary course of business consistent with past practice, make any material changes in First Bank’s policies and practices with respect to (A) underwriting, pricing, originating, acquiring, selling, servicing, or loans or (B) First Bank’s hedging practices and policies, in each case except as required by law or requested by a Regulatory Authority or (ii) acquire or maintain sell any right or interest servicing rights, except the sale of mortgage servicing rights in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests ordinary course of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderbusiness consistent with past practices;
(xiip) use restructure or materially change its investment securities portfolio or its interest rate risk position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(q) make any part capital expenditures other than pursuant to binding commitments existing on the date hereof and other than expenditures deemed necessary to maintain existing assets in good repair or to make payment of necessary taxes;
(r) establish or commit to the establishment of any new branch or other office facilities or file any application to relocate or terminate the operation of any banking office;
(s) take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the proceeds conditions to the Merger set forth in Article 7 not being satisfied or in a violation of any Transaction hereunder provision of this Agreement;
(t) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines;
(u) knowingly take any action that would prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the IRC;
(v) agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2;
(w) maintain First Bank’s allowance for loan losses in a manner inconsistent with GAAP and applicable regulatory guidelines and accounting principles, practices, and methods consistent with past practices of First Bank; or
(x) take any purpose which violatesaction or fail to take any action that at the time of such action or inaction is reasonably likely to prevent, or would be inconsistent reasonably likely to materially interfere with, the provisions of Regulation T, U or X consummation of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyMerger.
Appears in 3 contracts
Samples: Merger Agreement (Georgia-Carolina Bancshares, Inc), Merger Agreement (State Bank Financial Corp), Merger Agreement (State Bank Financial Corp)
Negative Covenants of Seller. On and as of the date hereof and at all times while this each Purchase Date and until the Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreementrepurchase, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Loans in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Section 6 of this Annex I;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Annex I;
(ive) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Hedging Transaction for the benefit of any Person other than Buyer;
(vf) enter into materially modify or terminate any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course organizational documents of Seller’s business after the repurchase thereof in accordance with this Agreement)Seller or take any action which would cause it to cease to be a Single-Purpose Entity;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any a Significant Modification or any extension or termination of any note, loan agreement, mortgage, pledge agreement or guaranty relating to the Purchased Loans or other than in accordance with Article 29material agreement or instrument relating to the Purchased Loans without the prior written consent of Buyer;
(ixh) take any action or permit the organizational documents or jurisdiction of organization of Seller such action to be amended taken which would result in any material respecta Change in Control;
(xi) after the occurrence and during the continuance continuation of an any Event of Default or monetary Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; or
(j) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to any Plan and shall not permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to any Plan;
(xik) acquire or maintain any right or interest engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under the Agreement, the Purchased Asset Loans or any Mortgaged Property that is senior toTransaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or pari passu withsubstantially similar provisions under any other federal, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right state or interest in a Purchased Asset hereunder;local laws, rules or regulations; or
(xiil) use make any part of the proceeds of future advances under any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title Purchased Loan to any real propertyunderlying obligor which are not permitted by the related Purchased Loan Documents.
Appears in 3 contracts
Samples: Master Repurchase Agreement (Gramercy Capital Corp), Master Repurchase Agreement (Gramercy Capital Corp), Master Repurchase Agreement (Gramercy Capital Corp)
Negative Covenants of Seller. On and as of the Closing Date, as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Buyer in its discretion, not to be unreasonably withheld, conditioned or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralCollateral or Purchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement, the Transaction DocumentsSecurity Deed and the Lien granted by Sponsor under the Pledge and Security Agreement or unless and until such Purchased Asset relating to such Purchased Items or Collateral is repurchased by Seller in accordance with this Agreement;
(ive) intentionally omitted;
(v) except as otherwise expressly provided herein, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 297(e);
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Buyer, not to be unreasonably withheld, conditioned or delayed, other than special purpose entity provisions, for which such consent shall be in any material respectBuyer’s sole discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiij) directly, or through a Subsidiary, acquire or hold title enter into any Hedging Transaction with respect to any real propertyPurchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty; or
(k) incur any Indebtedness other than pursuant to, and in accordance with, this Agreement and the other Transaction Documents.
Appears in 3 contracts
Samples: Master Repurchase and Securities Contract Agreement, Master Repurchase and Securities Contract Agreement (Blackstone Mortgage Trust, Inc.), Master Repurchase and Securities Contract Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, no Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title or interest to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any Permitted Encumbrances or hereafter acquired, liens created in favor of Buyer under this Agreement or the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omittedmaterially modify or terminate its Seller Operating Agreement or any of the organizational documents of such Seller;
(vf) enter into into, consent or assent to any transaction of merger amendment or consolidation or amalgamationsupplement to, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution)termination of, or sell all or substantially all waiver of its assets (except in connection with the sale or securitization any provision of, any of the Loan Documents relating to any Purchased Assets in Loan to the ordinary course extent any of Seller’s business after the repurchase thereof same constitutes a Material Modification except in accordance with the terms and provisions of this Agreement);
(vig) transfer or permit to be transferred any direct or indirect ownership interests in any Seller Party, or take any action or permit any action to be taken, if any such transfers and/or actions, individually or in the aggregate, would result in a Change of Control;
(viih) intentionally omitted[Intentionally Omitted];
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of such Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of such Seller (unless the same is necessary for SAMC to maintain its status as a REIT under the Code or to prevent the imposition of taxes on SAMC pursuant to Sections 857 or 4981 of the Code);
(j) send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor to make any payment due on a Purchased Loan to any account, other than a restricted or other similar account established pursuant to the applicable Loan Documents, the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any Plans or have an obligation to contribute to any Plan or Multiemployer Plan; or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or Multiemployer Plan that could possibly result in material liability for any Seller;
(xil) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior tosubject to Section 21 of this Agreement, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderbecome an entity deemed to hold Plan Assets;
(xiim) use make any part future advances under any Purchased Loan to any underlying obligor that are not expressly provided for by the related Loan Documents;
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) exercise any remedies under the Loan Documents for any Purchased Loan as to which a Loan Event of Default has occurred and has not been waived, including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) conduct any business, or engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person; or engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the proceeds prohibitions set forth in Executive Order 13224 issued on September 24, 2001. Each Seller further covenants and agrees to deliver (from time to time) to Buyer any such certification or other evidence as may be requested by Buyer in its sole and absolute discretion, confirming that such Seller has not, to its knowledge, engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any Transaction hereunder for any purpose which violatescontribution of funds, goods, or would be inconsistent withservices, to or for the provisions benefit of Regulation T, U or X of the Board of Governors of the Federal Reserve Systema Prohibited Person; andor
(xiiis) directly, cause any Purchased Loan to be serviced by any servicer other than a Servicer expressly approved in writing by Buyer or through a Subsidiary, acquire enter into or hold title to materially modify any real propertyServicing Agreement except in accordance with Section 28.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Sutherland Asset Management Corp), Master Repurchase Agreement (Sutherland Asset Management Corp)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into consent to a Significant Modification of any transaction Purchased Asset without the prior written consent of merger Buyer, which consent shall be in Buyer’s sole discretion provided that, to the extent the underlying loan documentation provides any standard of reasonableness or consolidation or amalgamationother qualifying language applicable to Seller in respect of such Significant Modification, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of Buyer shall make its assets (except determination in connection conformance with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);such standard.
(vif) permit a Change of ControlControl to occur;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) except as could not individually or in the aggregate result in a Material Adverse Effect, sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) assuming that no portion of the Purchased Assets are funded by Buyer with “plan assets” within the meaning of the Plan Asset Regulations, engage in any transaction hereunder that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975(c)(1)(A)-(C) of the Code that would subject the Buyer to any tax or penalty on prohibited transactions imposed under Section 4975 of the Code or Section 502(i) of ERISA;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not contemplated by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer in its sole discretion;
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use the proceeds from any part Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer);
(p) permit, at any time other than during the Wind Down Period, a breach of the Concentration Limit unless otherwise consented to by Buyer; or
(q) knowingly, directly or indirectly use the proceeds of from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyregulations.
Appears in 2 contracts
Samples: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to except for any Purchased AssetLoan which has been repurchased by Seller in accordance with this Agreement, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer at least thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on Seller’s interest in any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any liens created in favor of Buyer under this Agreement or hereafter acquired, the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omitted;
(v) enter into modify or terminate the Master Seller LLC Agreement or any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course organizational documents of Seller’s business after , provided that Buyer shall not unreasonably withhold or delay its consent to any proposed modification to the repurchase thereof in accordance with this AgreementMaster Seller LLC Agreement (excluding any modification to the SPE provisions set forth therein);
(vif) enter into, consent or assent to or take any Material Action;
(g) transfer or permit to be transferred any direct or indirect ownership interests in Seller, or take any action or permit any action to be taken, if any such transfers and/or actions, individually or in the aggregate, would result in a Change of Control.
(h) take any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of U.S. federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of SellerSeller (unless the same is necessary for Sponsor to maintain its status as a REIT, or a qualified subsidiary thereof, under the Code);
(xij) acquire send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) with respect to, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right any Plan or interest permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan, in each case, which could reasonably be likely to have a Purchased Asset hereunderMaterial Adverse Effect;
(xiil) use engage in any part transaction that would cause the assets of Seller to be deemed to constitute “plan assets” for purposes of ERISA;
(m) make any future advances under any Purchased Loan to any underlying obligor that are not expressly required by the related Purchased Loan Documents;
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) or otherwise cease to be a Single-Purpose Entity.
(p) exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan;
(q) except as otherwise expressly permitted in any intercreditor agreement, co-lender agreement or participation agreement for the applicable Purchased Loan as in effect on the Purchase Date, or any such similar agreement or amendment thereto entered into subsequent to the applicable Purchase Date that has been approved by Buyer, or as otherwise expressly agreed by Buyer pursuant to the terms of the proceeds Confirmation and/or the Senior Interest Side Letter for the applicable Purchased Loan, Transfer or permit to be Transferred, in whole or in part, any Junior Interest held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Transaction hereunder for Junior Interest held by any purpose which violatesother Person, except to a Qualified Institutional Lender; or
(r) consenting to, or would be inconsistent withgranting of any waiver with respect to, any incurrence of additional debt by the provisions of Regulation T, U Mortgagor or X any mezzanine loan by any direct or indirect beneficial owner of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyMortgagor.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Northstar Realty Finance Corp.), Master Repurchase Agreement (NorthStar Real Estate Income Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Loans are repurchased by Seller in accordance with this Agreement;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Section 6 of this Agreement;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ive) intentionally omitted;
(v) enter into modify or terminate any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all the organizational documents of its assets Seller (except in connection with Buyer shall not unreasonably withhold or delay any request for a consent to such modification to the sale or securitization of organizational documents (excluding the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreementspecial purpose entity provisions));
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Loans (other than Permitted Purchased Loan Modifications), unless and until such Purchased Loans are repurchased by Seller in accordance with Article 29this Agreement (except Buyer shall not unreasonably withhold or delay any request for a consent to a Significant Purchased Loan Modification);
(ixg) admit any additional members in Seller, or permit the organizational documents or jurisdiction of organization sole member of Seller to be amended assign or transfer all or any portion of its membership interest in any material respectSeller;
(xh) after the occurrence and during the continuance continuation of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
Seller (xiunless the same is necessary for Guarantor to maintain its status as a real estate investment trust (REIT) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, under the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyCode).
Appears in 2 contracts
Samples: Master Repurchase Agreement, Master Repurchase Agreement (NorthStar Real Estate Income Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this AgreementLoan, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Loans are repurchased by Seller in accordance with this Agreement;
(iiic) create, incur, assume incur or suffer permit to exist any Lien in or on the Purchased Loans, except as described in Section 6 of this Agreement;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ive) intentionally omittedmodify or terminate any of the organizational documents of Seller (except Buyer shall not unreasonably withhold or delay any request for a consent to such modification to the organizational documents (excluding the special purpose entity provisions));
(vf) enter into consent to any transaction of merger amendment or consolidation or amalgamationsupplement to, or liquidatetermination of any note, wind up loan agreement, mortgage or dissolve itself guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Loans (or suffer any liquidation, winding up or dissolutionother than Permitted Purchased Loan Modifications), or sell all or substantially all of its assets (except in connection with the sale or securitization of the unless and until such Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof Loans are repurchased by Seller in accordance with this Agreement; provided, that notwithstanding the foregoing, to the extent Buyer’s prior approval is required for any such amendment or termination set forth in this Section 11(f) and Seller delivers a written request for approval to Buyer which is not responded to within five (5) Business Days, then Buyer shall be deemed to have granted its approval to such amendment or termination if Seller proceeds to deliver to Buyer a second written request for approval which is not responded to within five (5) Business Days, so long as such second request is marked in bold lettering with the following language: “BUYER’S RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A REPURCHASE AGREEMENT BETWEEN THE UNDERSIGNED AND BUYER” and the envelope containing the request must be marked “PRIORITY”;
(g) admit any additional members in Seller, or permit the sole member of Seller to assign or transfer all or any portion of its membership interest in Seller;
(h) enter into any Hedging Transactions (it being understood and agreed Seller shall not have any obligation to enter into Hedging Transactions with respect to individual Purchased Loans or pursue hedging strategies at the level of Seller with respect to the Purchased Loans);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xi) after the occurrence and during the continuance continuation of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.), Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the any Transaction hereunder is in effect, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item Assets with any Person other than PurchaserBuyer, unless and until such Purchased Loans are repurchased by Seller in accordance with this Agreement;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) if the same would cause Seller to violate the covenants contained in Article 12;
(ve) subject to Article 27, permit (through Seller’s giving of consent or a waiver) any Mortgaged Property or Mortgagor, in each case, relating to any Purchased Asset, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt (in each case, excluding Permitted Encumbrances against the related Mortgaged Property and except to the extent that any such Liens or Indebtedness are otherwise created, incurred, assumed or permitted in accordance with the Purchased Asset Documents);
(f) consent or assent to any Significant Modification relating to any Purchased Asset or other agreement or instrument relating to any Purchased Asset other than in accordance with Article 27 and the Servicing Agreement or Servicer Letter (as applicable);
(g) permit the organizational documents or organizational structure of Seller to be amended in any material respect; provided, however that the foregoing shall not prohibit any modifications to Seller’s organizational documents which are administrative in nature (other than with respect to the special purpose entity provisions) or solely reflect new direct ownership so long as no Change of Control has occurred;
(h) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets which are Purchased Assets (except in connection with the sale or securitization repurchase of the such Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vii) permit suffer a Change of Control;
(viij) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of DefaultDefault which has occurred, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller, except, after the occurrence and during the continuance of a non-monetary Event of Default, to the extent required to maintain Parent’s qualification as a real estate investment trust;
(xik) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property relating to any Purchased Asset that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless other than in connection with the addition of such right other rights or interest in a Purchased Asset interests as Collateral hereunder;
(xiil) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiim) directly, or through a Subsidiary, acquire or hold title to any real property;
(n) make any election or otherwise take any action that would cause Seller to be treated as an association taxable as a corporation for U.S. federal income tax purposes, except to the extent required to maintain Parent’s qualification as a real estate investment trust; or
(o) permit Parent or Guarantor to internalize its management without Buyer’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Master Repurchase Agreement, Master Repurchase Agreement (Colony NorthStar Credit Real Estate, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this AgreementLoan, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Loans in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Loans for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to or effect a Significant Modification of any transaction Purchased Loan without the prior written consent of merger Buyer; provided, however, that Buyer’s consent to any Significant Modification shall be deemed to be given if (i) no Event of Default shall have occurred and be continuing (either at the date of any notices specified below or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer as of the effective date of any liquidation, winding up or dissolutiondeemed approval), or sell all or substantially all of its assets (except in connection ii) Seller shall have sent Buyer a written request for approval with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof respect to such matter in accordance with this Agreement)the applicable terms and conditions hereof, which written request shall have been (A) accompanied by the applicable documents relating to the proposed Significant Modification, together with such other information as is reasonably requested by Buyer and (B) marked in bold lettering with the following language: “BUYER’S RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE MASTER REPURCHASE AGREEMENT BETWEEN THE UNDERSIGNED AND BUYER” and the envelope containing such written request (or subject line if such notice is sent by email) shall have been marked “PRIORITY-DEEMED APPROVAL MAY APPLY”; and (iii) Buyer shall have failed to respond to such written request within the aforesaid time-frame;
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Event of Default or monetary Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) with respect to, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right any Plan or interest in a Purchased Asset hereunderpermit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(xiii) use hold or be deemed to hold Plan Assets or engage in any part transaction, in each case, that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction, with respect to which Buyer is the party in interest, disqualified person or equivalent, under Section 406 of ERISA, Section 4975 of the proceeds of Code or substantially similar provisions under any Transaction hereunder for any purpose which violatesother federal, state or would be inconsistent withlocal laws, the provisions of Regulation T, U rules or X of the Board of Governors of the Federal Reserve System; andregulations;
(xiiij) directly, or through a Subsidiary, acquire or hold title make any future advances under any Purchased Loan to any real propertyunderlying obligor that are not permitted by the related Purchased Loan Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part; or
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a single-purpose entity meeting the requirements set forth in Section 13.
Appears in 2 contracts
Samples: Master Repurchase Agreement, Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer at least thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any liens created in favor of Buyer under this Agreement or hereafter acquired, the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omitted;
(v) enter into modify or terminate the Master Seller LLC Agreement or any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets organizational documents of Seller (provided, however, notwithstanding anything to the contrary in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement, Buyer hereby consents to Member’s execution of that certain Second Amended and Restated Limited Liability Company Agreement of Master Seller dated as of February 9, 2017);
(vif) permit a Change of Control;
(vii) intentionally omitted;
(viii) enter into, consent or assent to any Significant Modification amendment or supplement to, or termination of, or waiver of any provision of, any of the Purchased Loan Documents relating to any Purchased Loan, other than in accordance with Article 29Section 7(e) hereof;
(ixg) transfer or permit the organizational documents or jurisdiction of organization of Seller to be amended transferred any direct or indirect ownership interests in Seller, or take any material respectaction or permit any action to be taken, if any such transfers and/or actions, individually or in the aggregate, would result in a Change of Control.
(h) take any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of U.S. federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xij) acquire send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any right Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan
(l) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code;
(m) make any future advances under any Purchased Loan to any underlying obligor that are not (i) protective advances or (ii) future advances which are (x) permitted or contemplated by the related Purchased Loan Documents and (y) in accordance with the budgets and capital expenditure plans approved under the Purchased Loan Documents (and, if applicable, approved by Buyer under Section 3(o) hereof);
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) or otherwise cease to be a Single-Purpose Entity.
(p) (x) other than as expressly permitted under the terms of the related Confirmation, exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan or (y) in connection with any foreclosure or exercise of remedies relating to any Purchased Loan, take title to or otherwise obtain an ownership interest in any underlying Mortgaged Property, in each case, without Buyer’s prior written consent;
(q) except as otherwise expressly permitted without the Seller’s consent under the terms of the applicable intercreditor agreement, co-lender agreement or participation agreement for the applicable Purchased Asset Loan as in effect on the Purchase Date, or any Mortgaged Property such similar agreement or amendment thereto entered into subsequent to the applicable Purchase Date that is senior has been approved by Buyer, or as otherwise expressly agreed by Buyer pursuant to the terms of the Confirmation and/or the Senior Interest Side Letter for the applicable Purchased Loan, Transfer or permit to be Transferred, in whole or in part, any Related Interest, Mezzanine Loan or Preferred Equity Interest held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Related Interest, Mezzanine Loan or Preferred Equity Interest held by any other Person, except to a Qualified Institutional Lender;
(r) other than as specified in the related Confirmation, consent to, or pari passu withgrant any waiver with respect to, any incurrence of additional debt by the rights Mortgagor or any mezzanine loan by any direct or indirect beneficial owner of the Mortgagor which is not expressly permitted under the related Purchased Loan Documents;
(s) following the Purchase Date with respect to the Watchtower A-Note Eligible Loan, transfer, sell or permit to be transferred or sold any interest in the Watchtower A-Note Eligible Loan, without Buyer’s prior written consent;
(t) without Buyer’s consent, cause any Purchased Loan to be serviced by any servicer other than the Initial Servicer or other servicer expressly approved in writing by Buyer on the related Purchase Date; or
(u) permit Manager to be terminated as Sponsor’s external manager pursuant to the Second Amended and interests Restated Management Agreement, dated as of Purchaser therein under October 23, 2014 (as the same may be further amended, restated, supplemented or otherwise modified, provided that such amendment, restatement, supplement or other modification does not terminate or replace Manager as Sponsor’s external manager), between Sponsor and Manager, unless any replacement external manager or switch to internal management shall have been approved by Buyer in writing, such approval not to be unreasonably withheld, conditioned or delayed. Also during the term of this Agreement and so long as any Transaction is in effect hereunder, Seller shall not (i) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the other Transaction Documents unless such right making or interest receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person; or (ii) engage in a Purchased Asset hereunder;
(xii) use or conspire to engage in any part transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the proceeds prohibitions set forth in Executive Order 13224 issued on September 24, 2001. Seller further covenants and agrees to deliver (from time to time) to Buyer any such certification or other evidence as may be requested by Buyer in its sole and absolute discretion, confirming that neither Seller nor Sponsor has engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any Transaction hereunder for any purpose which violatescontribution of funds, goods, or would be inconsistent withservices, to or for the provisions benefit of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyProhibited Person.
Appears in 2 contracts
Samples: Master Repurchase Agreement, Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any the Purchased Asset or Assets and the other Purchased ItemItems;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any the Purchased Asset Assets or other Purchased Item Items to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets or any Purchased Asset or other Purchased Item Items with any Person other than Purchaser;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralCollateral or Purchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation (except as otherwise permitted under this Agreement);
(ve) permit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property or Mortgagor to create, incur, assume or suffer to exist any Liens or Indebtedness (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against the related Mortgaged Property);
(f) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Purchaser in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment, modification, waiver or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets, or consent or assent to any other action with respect to the Purchased Assets, the related Purchased Asset Documents, the related Mortgaged Property or related Mortgagor other than in accordance with Article 29Section 2.03 of the Interim Servicing Agreement;
(ixh) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Purchaser in any material respectits sole and absolute discretion;
(xi) permit a Change of Control of Seller;
(j) after the occurrence and during the continuance of a Default or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now no or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xik) [reserved];
(l) [reserved];
(m) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiin) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiiio) directly, permit the Concentration Account Agreement to be amended or through the Concentration Account to be terminated in any way that could reasonably be expected to result in a Subsidiary, acquire or hold title to any real propertyMaterial Adverse Effect.
Appears in 2 contracts
Samples: Master Repurchase Agreement (NewStar Financial, Inc.), Master Repurchase Agreement (NewStar Financial, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Buyer in its sole and absolute discretion;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of the Purchased Assets, the other Collateral or Purchased Items, other than the security interest granted by Seller pursuant to Article 5 of this Agreement;
(e) create, incur, assume or suffer to exist any Lien in or on upon any of its property, assets, revenue, the Purchased Assets, the other Collateralassets or revenues, whether now owned or hereafter acquired, other than except for the following, hereinafter referred to as the “Permitted Liens”:
(i) Liens and security interest granted for taxes not yet due or which are being contested in good faith by Seller appropriate proceedings, provided, that adequate reserves with respect thereto are maintained on the books of the related borrower or its subsidiaries, as the case may be, in conformity with GAAP; and
(ii) Liens created pursuant to the Transaction Documents;
(iv) intentionally omitted;
(vf) enter into any transaction of merger or consolidation or amalgamation, that is likely to have a material adverse effect on the creditworthiness or financial condition of Seller, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2926;
(ixh) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Buyer in any material respectits sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xii) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiij) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiiik) directlyenter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(l) from and after December 15, 2011, and through and including December 14, 2012, permit the aggregate Repurchase Price of all Purchased Assets under this Agreement to exceed an amount equal to $110,000,000;
(m) from and after December 15, 2012, and through and including December 14, 2013, permit the aggregate Repurchase Price of all Purchased Assets under this Agreement to exceed an amount equal to $65,000,000;
(n) from and after December 15, 2013, and through and including December 14, 2014, permit the aggregate Repurchase Price of all Purchased Assets under this Agreement to exceed an amount equal to $30,000,000;
(o) permit Sxxxxxx Xxxxxx to discontinue his current employment with his current responsibilities throughout the term of this Agreement; provided, that if Sxxxxxx Xxxxxx is no longer so employed, replacement(s) acceptable to Buyer in its sole and absolute discretion shall be appointed within thirty (30) days after his departure; and
(i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or through fail to contest in a Subsidiarytimely and appropriate manner, acquire any proceeding or hold title petition described in clause (i), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Seller or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any real propertysuch proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing. Compliance with covenants in this Article 9 must be evidenced by a compliance certificate furnished together therewith as further provided in Article 10(j)(ii) below, and compliance with all such covenants are subject to verification by Buyer.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Capital Trust Inc), Master Repurchase Agreement (Capital Trust Inc)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to in accordance with the terms and provisions of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, including, without limitation, any effective transfer or other disposition as a result of a division of Seller, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreements to which it is a party;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger Lien granted by Pledgor under the Pledge and Security Agreement or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the unless and until such Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement);
(vie) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to, or permit the Primary Servicer or servicer to make, any Significant Modification other than relating to the Purchased Assets without the prior written consent of Buyer, which shall be granted or denied in accordance with Article 29Buyer’s sole but reasonable discretion;
(ixg) without the prior written consent of Buyer in its sole discretion, except as permitted by the Transaction Documents, either (i) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respector (ii) permit the organizational structure of Seller to be changed from a limited liability company to another form of ownership;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Buyer in writing;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiij) directlyeither (i) incur any Indebtedness except as provided in Article 12(i) or (ii) otherwise cease to be a Single-Purpose Entity;
(k) amend or otherwise modify the Underwriting Guidelines or originate mortgage loans in a manner inconsistent with the Underwriting Guidelines. Notwithstanding the preceding sentence, in the event that Seller makes any amendment or modification to the Underwriting Guidelines, Seller shall immediately notify Buyer of such change and shall promptly deliver to Buyer a complete copy of the amended or modified Underwriting Guidelines;
(l) take any action, cause, allow, or through permit any of Seller, Pledgor or Guarantor to be required to register as an “investment company”, or a Subsidiarycompany “controlled by an investment company”, acquire within the meaning of the Investment Company Act, or hold title to violate any provisions of the Investment Company Act, including Section 18 thereof or any rules promulgated thereunder;
(m) after the occurrence and during the continuance of any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; provided, however, that so long as no monetary Default or Event of Default shall have occurred and be continuing, Seller may distribute the minimum amount of cash necessary for Guarantor to maintain its status as a REIT and avoid the payment of any income or excise taxes by Guarantor, provided that such distributions are further distributed by Guarantor to maintain its status as a REIT or avoid the payment of income or excise taxes by Guarantor;
(n) make any future advances under any Purchased Asset to any real propertyunderlying obligor that are not permitted by the related Purchased Asset Documents; or
(o) seek its dissolution, liquidation or winding up, in whole or in part.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Terra Property Trust, Inc.), Master Repurchase Agreement (Terra Secured Income Fund 5, LLC)
Negative Covenants of Seller. On and as of the date hereof and at all times while until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Loans are repurchased by Seller in accordance with this Agreement;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Section 6 of this Agreement;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ive) intentionally omitted;
(v) enter into modify or terminate any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all the organizational documents of its assets Seller (except in connection with Buyer shall not unreasonably withhold or delay any request for a consent to such modification to the sale or securitization of organizational documents (excluding the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreementspecial purpose entity provisions));
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Loans (other than Permitted Purchased Loan Modifications), unless and until such Purchased Loans are repurchased by Seller in accordance with Article 29this Agreement;
(ixg) admit any additional members in Seller, or permit the organizational documents or jurisdiction of organization sole member of Seller to be amended assign or transfer all or any portion of its membership interest in any material respectSeller;
(xh) after the occurrence and during the continuance continuation of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 2 contracts
Samples: Master Repurchase Agreement (RAIT Financial Trust), Master Repurchase Agreement (RAIT Financial Trust)
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to except for any Purchased AssetLoan which has been repurchased by Seller from Buyer in accordance with this Agreement, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, including, without limitation, any effective transfer or pledge other disposition as a result of a Division of Seller, or pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) hereof unless it shall have provided Buyer at least 30 days’ prior written notice of such change;
(d) create, incurincur or permit to exist any lien, assume encumbrance or security interest in or on Seller’s interest in any of the Purchased Loans or the other Collateral, except for any liens created in favor of Buyer under this Agreement or the other Transaction Documents;
(e) modify or terminate the Master Seller LLC Agreement or any of the organizational documents of Seller, provided that Buyer shall not unreasonably withhold or delay its consent to any proposed modification to the Master Seller LLC Agreement (excluding any modification to the special purpose entity provisions set forth therein);
(f) [reserved];
(g) with respect to any Purchased Loan that is a Construction Loan, agree, consent or suffer to exist any Lien in change to any Business Plan or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquiredbudget, other than reallocation of individual line items on a budget or changes to a line item on a budget in amounts that the Liens and security interest granted by Seller Mortgagor is permitted to effect without any lender consent or discretion pursuant to the Transaction terms of the related Purchased Loan Documents;
(ivh) intentionally omittedtake any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of U.S. federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock direct or indirect equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xij) send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or Multiemployer Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or any Multiemployer Plan;
(l) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other federal, state or local laws, rules or regulations;
(m) make any future advances under any Purchased Loan to any underlying obligor that are not permitted by the related Purchased Loan Documents;
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) hereof or otherwise cease to be a Single-Purpose Entity.
(p) (i) exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan; or (ii) in connection with any foreclosure or exercise of remedies relating to any Purchased Loan, take title to or otherwise obtain an ownership interest in any underlying Mortgaged Property, in each case, without Buyer’s prior written consent (not to be unreasonably withheld);
(q) except as otherwise expressly permitted in any intercreditor agreement, co-lender agreement or participation agreement for the applicable Purchased Loan as in effect on the Purchase Date, or any such similar agreement or amendment thereto entered into subsequent to the applicable Purchase Date that has been approved by Buyer, or as otherwise expressly agreed by Buyer pursuant to the terms of the Confirmation and/or the Senior Interest Side Letter for the applicable Purchased Loan, Transfer or permit to be Transferred, in whole or in part, any Related Interest with respect to any Purchased Loan held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Related Interest with respect to any Purchased Loan held by any other Person;
(r) consent to, or grant of any waiver with respect to, any incurrence of additional debt by the Mortgagor or any mezzanine loan by any direct or indirect beneficial owner of the Mortgagor;
(s) knowingly: (i) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person; or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order 13224 issued on September 24, 2001 or in any Sanctions Laws. Seller further covenants and agrees to deliver (from time to time) to Buyer any such certification or other evidence as may be requested by Buyer in its sole and absolute discretion, confirming that neither of Seller nor Guarantor has, to the actual knowledge of Seller, engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person;
(t) cause any Purchased Loan to be serviced by any servicer other than a Servicer, unless expressly approved in writing by Buyer pursuant to Section 28 hereof;
(u) amend, modify or waive in any material respect or terminate any provision of any Servicing Agreement;
(v) acquire or maintain any right or interest in any Purchased Asset Loan or any Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiiw) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation Regulations T, U or X of the Board of Governors of the Federal Reserve System or otherwise for the purpose of acquiring or purchasing “Margin Stock” as such term is defined in Regulation U of the Board of Governors of the Federal Reserve System; and;
(xiiix) directlytake any action, cause, allow, or through permit any of Seller, Guarantor or any Subsidiary of Guarantor that is also a direct or indirect parent of Seller to be required to register as an “investment company,” or a company “controlled by an investment company,” within the meaning of the Investment Company Act, or to violate any provisions of the Investment Company Act, including Section 18 thereof or any rules or regulations promulgated thereunder;
(y) use, or permit Guarantor to, directly or indirectly, use the proceeds of any Transaction, or lend, contribute or otherwise make available such proceeds to any Subsidiary, acquire joint venture partner or hold title other Person 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 real propertyPerson in violation of Anti-Corruption Laws;
(z) enter into (or agree to enter into) any Division/Series Transaction, except, in each case, for the establishment of any new Series Seller in connection with any Transaction in accordance with the provisions of Section 3(n) hereof; or
(aa) permit either (i) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the 0000 Xxx) to become, or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner, directly or indirectly, of 10% or more of the total ownership interests of Guarantor, entitled to vote generally in the election of the directors (or the applicable equivalent of such Person) or (ii) an Affiliate of the Manager to act as the external manager of Guarantor, unless, in each case, (x) Buyer has completed all “Know Your Customer” and OFAC diligence as to such “person” or “group” or such Affiliate of Manager, as applicable, and (y) the results of such diligence are acceptable to Buyer in its sole discretion.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, knowingly take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) to the extent the same would cause Seller to violate the covenants contained in this Agreement;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omittedpermit (through the giving of consent, waiver, failure to object or otherwise) any Mortgagor to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, senior or pari passu mortgage debt, junior mortgage debt or mezzanine debt (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against any related Mortgaged Property);
(viii) consent or assent to any Significant Modification amendment, modification, waiver or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to any Purchased Asset or other agreement or instrument relating to any Purchased Asset other than in accordance with Article 2929 and the Servicer Letter;
(ix) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectamended;
(x) after the occurrence and during the continuance of a Default or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Negative Covenants of Seller. On (a) From the date hereof until the earlier of the Closing Date or the termination of this Agreement, Seller will not, other than as contemplated hereby or as disclosed on Schedule 5.3(a), do any of the following without the prior written consent of Buyer to the extent any of the following relates to or in any way may affect the Acquisition, the Business or the Assets:
(i) take any action which would (a) adversely affect the ability of any party to the Acquisition Documents to obtain any Consents required for the transactions contemplated thereby, or (b) adversely affect the ability of any party hereto to perform its covenants and agreements under the Acquisition Documents;
(ii) amend any of its organizational or governing documents, except for the purpose of accomplishing the transactions contemplated by this Agreement;
(iii) impose, or suffer the imposition, on any material asset of Seller of any Lien or permit any such Lien to exist;
(iv) other than pursuant to the Acquisition Documents, sell, pledge or encumber, or enter into any contract to sell, pledge or encumber, any interest in the assets of Seller;
(v) purchase or acquire any assets or properties related to the Business, whether real or personal, tangible or intangible, or sell or dispose of any assets or properties, whether real or personal, tangible or intangible, except in the ordinary course of business and consistent with past practices;
(vi) grant any increase in compensation or benefits to any Business Employee, except in accordance with past practice; pay any severance or termination pay or any bonus other than pursuant to written policies or written contracts in effect as of the date hereof and at all times while this Agreement disclosed on Schedule 5.3(a)(vi); enter into or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(i) subject to Seller’s right to repurchase amend any Purchased Asset pursuant to the terms of this Agreement, take severance agreements with any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased ItemBusiness Employee;
(iivii) enter into or amend any employment contract between Seller and any Business Employee (unless such amendment is required by law) that Seller does not have the unconditional right to terminate without Liability (other than compensation for services already rendered), at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver on or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaserafter the Closing Date;
(iiiviii) createexcept as disclosed in Schedule 5.3(a)(viii), incur, assume adopt any new employee benefit plan or suffer to exist make any Lien material change in or on to any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, existing Business Employee benefit plans other than any such change that is required by law or that, in the Liens and security interest granted by Seller pursuant opinion of counsel, is necessary or advisable to maintain the Transaction Documentstax qualified status of any such plan except as disclosed in Schedule 5.3(a)(viii);
(ivix) intentionally omittedcommence any Litigation other than in accordance with past practice, settle any Litigation involving any Liability of Seller for material money damages or restrictions upon the operations of the Business;
(vx) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent and which is not material, modify, amend or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in terminate any material respect;
(x) after the occurrence and during the continuance of an Event of Defaultcontract or waive, make release, compromise or assign any distribution, payment on account of, material rights or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Sellerclaims;
(xi) acquire except in the ordinary course of business and, even if in the ordinary course of business, then not in an amount to exceed $10,000 in the aggregate, make or maintain commit to make any right or interest in any Purchased Asset or any Mortgaged Property that is senior tocapital expenditure, or pari passu withenter into any lease of capital equipment as lessee or lessor, related to the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderBusiness;
(xii) use make any part of loan to any person or increase the proceeds aggregate amount of any Transaction hereunder for loan currently outstanding to any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; andperson;
(xiii) directlymake any significant change in any Tax or accounting methods or systems of internal accounting controls, except as may be appropriate to conform to changes in Tax Laws or regulatory accounting requirements or generally accepted accounting principles;
(xiv) except in the ordinary course of business and which is not material, modify, amend or terminate any material contract or waive, release, compromise or assign any material rights or claims;
(xv) take any action, or through a Subsidiaryomit to take any action, acquire which would cause any of the representations and warranties contained in Article 2 to be untrue or hold title incorrect;
(xvi) modify, amend or terminate any of the insurance policies listed on Schedule 2.16.
(xvii) take any action, or omit to take any real propertyaction, that would adversely impact the ability of Seller to complete the Acquisition upon the terms and conditions set.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Pediatric Services of America Inc)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any or security interest in the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets or Underlying Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets or Underlying Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documentsexcept as described in Section 5 of this Agreement;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiid) consent or assent to any Significant Modification amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Assets or Underlying Assets or other material agreement or instrument relating to the Purchased Assets other than in accordance with Article 29Section 6(c);
(ixe) permit use any of the organizational documents Purchase Price for any Purchased Asset either directly or jurisdiction indirectly to acquire any security, as that term is defined in Regulation T of organization the Regulations of Seller the Board of Governors of the Federal Reserve System, or take any action that might cause any Transaction to be amended in violate any material respectregulation of the Federal Reserve Board;
(xf) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets forfor any equity or ownership interest of Seller, or for a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereofto any equity or ownership interest of Seller, either directly or indirectly, whether in cash or property or in obligations of Seller; provided, that the foregoing shall not restrict Seller from making distributions, from assets other than the Purchased Assets, required to maintain Seller’s status under the Code as a real estate investment trust (“REIT”) within the meaning of Section 856 through 860 of the Code, in the event Seller then qualifies as a REIT under the Code;
(xig) acquire or maintain any right or interest in any file a UCC financing statement, with respect to a Purchased Asset or any Mortgaged Property that is senior toUnderlying Asset, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right an amendment or interest in termination statement with respect to a UCC financing statement with respect to a Purchased Asset hereunderor Underlying Asset, except as approved by Buyer in each instance;
(xiih) use any part enter into Transactions for which the Purchased Assets are CDO Assets which would cause the aggregate of the proceeds of any Transaction hereunder Purchase Prices for any purpose such CDO Assets to exceed the Maximum CDO Aggregate Purchase Price; or
(i) enter into Transactions for which violates, or Purchased Assets other than the CDO Assets which would be inconsistent with, cause the provisions of Regulation T, U or X aggregate of the Board of Governors of Purchase Prices for such Assets to exceed the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyMaximum Committed Aggregate Purchase Price.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Buyer in its discretion, not to be unreasonably withheld, conditioned or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased AssetsAssets , the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction DocumentsLien granted by Pledgor under the Pledge and Security Agreement;
(iv) intentionally omitted;
(ve) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to, or permit the Primary Servicer or servicer to make, any Significant Modification other than in accordance with Article 29relating to the Purchased Assets;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Buyer in any material respectits sole discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Buyer in writing;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiij) directlyenter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(k) incur any Indebtedness other than pursuant to, and in accordance with, this Agreement and the other Transaction Documents;
(l) [intentionally omitted]
(m) take any action to cause any of the Seller, Pledgor or Guarantor to be required to register as an “investment company”, or through a Subsidiarycompany “controlled by an investment company”, acquire within the meaning of the Investment Company Act, or hold title to violate any real propertyprovisions of the Investment Company Act, including Section 18 thereof or any rules promulgated thereunder;
(n) permit, at any time, the Purchase Price of any Purchased Asset to be less than $10,000,000.00 (other than due to the receipt of Principal Proceeds or the satisfaction of Margin Deficits) or greater than $100,000,000.00; or
(o) permit, at any time, a breach of the Concentration Limit.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (TPG RE Finance Trust, Inc.)
Negative Covenants of Seller. On and as From the date of this Agreement until the earlier of the date hereof and at all times while this Agreement Effective Time or the Transaction hereunder is in effecttermination of this Agreement, Seller shall not without unless the prior written consent of PurchaserBuyer shall have been obtained (which consent shall not be unreasonably withheld, which may be granted delayed or denied at Purchaserconditioned), and except as otherwise expressly contemplated herein or as set forth in Section 6.2 of Seller’s sole Disclosure Memorandum, Seller covenants and absolute discretionagrees that it will not do or agree or commit to do, or cause or permit any Seller Subsidiary to do or agree or commit to do, any of the following:
(a) amend the certificate of formation, articles of incorporation, bylaws or other governing instruments of any Seller Entity;
(b) incur, assume, guarantee, endorse or otherwise as an accommodation become responsible for any additional debt obligation or other obligation for borrowed money (other than indebtedness of Seller to Seller Bank or of Seller Bank to Seller, or the creation of deposit liabilities, purchases of federal funds, borrowings from any Federal Home Loan Bank or Federal Reserve, security repurchase arrangements or other short term liquidity funding of Seller Bank, or sales of certificates of deposits, in each case incurred in the Ordinary Course);
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreementrepurchase, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Assetredeem, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, acquire or pledge or hypothecateexchange, directly or indirectly, any interest in shares, or any Purchased Asset securities convertible into or other Purchased Item to exchangeable or exercisable for any Person shares, of the capital stock of any Seller Entity other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account ofBenefit Plans, or (ii) make, declare, pay or set apart assets for, a sinking aside for payment any dividend or other analogous fund set any record date for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, declare or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller’s capital stock or other equity interests (except for regular quarterly cash dividends by Seller (and consistent with Seller’s past practice) at a rate not to exceed $0.12 per share of Seller Common Stock; provided, however, that Seller shall not make, declare, or pay any such dividend if, as of the date of its action, Seller would be unable to satisfy the conditions outlined in Section 8.2(f));
(xid) issue, grant, sell, pledge, dispose of, encumber, authorize or propose the issuance of, enter into any Contract to issue, grant, sell, pledge, dispose of, encumber, or authorize or propose the issuance of, or otherwise permit to become outstanding, any additional shares of Seller Common Stock or any other capital stock of any Seller Entity, or any stock appreciation rights, or any option, warrant, or other Equity Right (other than issuances of Seller Common Stock in connection with the exercise of vested Seller Stock Options or Seller Warrants, or the vesting of Seller Restricted Stock Units, in each case that were outstanding as of the close of business on November 16, 2021; provided that such issuances of Seller Common Stock in connection with the exercise of Seller Stock Options and Seller Warrants occur prior to the Determination Date);
(e) directly or indirectly adjust, split, combine or reclassify any capital stock or other equity interest of any Seller Entity or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Seller Common Stock, or sell, transfer, lease, mortgage, permit any Lien, or otherwise dispose of, discontinue or otherwise encumber (i) any shares of capital stock or other equity interests of any Seller Entity (unless any such shares of capital stock or other equity interest are sold or otherwise transferred to one of the Seller Entities) or (ii) any Asset other than pursuant to Contracts in force at the date of the Agreement or sales of investment securities in the Ordinary Course;
(i) purchase any securities or make any acquisition of or investment in (except in the Ordinary Course), either by purchase of stock or other securities or equity interests, contributions to capital, Asset transfers, purchase of any Assets (including any investments or commitments to invest in real estate or any real estate development project) or other business combination, or by formation of any joint venture or other business organization or by contributions to capital (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course), any Person other than Seller Bank, or otherwise acquire direct or indirect control over any Person or (ii) enter into a plan of consolidation, merger, share exchange, share acquisition, reorganization, recapitalization or complete or partial liquidation or dissolution (other than consolidations, mergers or reorganizations solely among wholly owned Seller Subsidiaries), or a letter of intent, memorandum of understanding or agreement in principle with respect thereto;
(g) (i) grant any increase in compensation or benefits to the employees or officers of any Seller Entity, except as required by Law, (ii) pay any (x) severance or termination pay or (y) bonus, in either case other than pursuant to a Seller Benefit Plan in effect on the date hereof and in the case of clause (x) subject to receipt of an effective release of claims from the employee, and in the case of clause (y) to the extent required under the terms of the Seller Benefit Plan without the exercise of any upward discretion, (iii) enter into, amend, or increase the benefits payable under any severance, change in control, retention, bonus guarantees, collective bargaining agreement or similar agreement or arrangement with employees or officers of any Seller Entity, (iv) grant any increase in fees or other increases in compensation or other benefits to directors of any Seller Entity, (v) waive any stock repurchase rights, or grant, accelerate, amend (except to the extent necessary to comply with Section 2.3(e)) or change the period of exercisability of any Equity Rights or restricted stock, or authorize cash payments in exchange for any Equity Rights, (vi) fund any rabbi trust or similar arrangement, (vii) terminate the employment or services of any officer or any employee whose annual base compensation is greater than $75,000, other than for cause, (viii) hire any officer, employee, independent contractor or consultant (who is a natural person) whose annual base compensation is greater than $100,000, or (ix) implement or announce any employee layoff that would reasonably be expected to implicate the WARN Act;
(h) enter into, amend or renew any employment or Independent Contractor Contract between any Seller Entity and any Person requiring payments thereunder in excess of $75,000 in any 12-month period that the Seller Entity does not have the unconditional right to terminate without Liability (other than Liability for services already rendered), at any time on or after the Effective Time;
(i) except with respect to a Seller Benefit Plan that is intended to be tax-qualified in the opinion of counsel is necessary or advisable to maintain the tax qualified status, (i) adopt or establish any plan, policy, program or arrangement that would be considered a Seller Benefit Plan if such plan, policy, program or arrangement were in effect as of the date of this Agreement, or amend in any material respect any existing Seller Benefit Plan, terminate or withdraw from, or amend, any Seller Benefit Plan, (ii) make any distributions from such Seller Benefit Plans, except as required by the terms of such plans, or (iii) fund or in any other way secure the payment of compensation or benefits under any Seller Benefit Plan;
(j) except in each case as may be required to conform to changes in Tax Laws, regulatory accounting requirements or GAAP, as applicable, make any change in any accounting principles, practices or methods or systems of internal accounting controls; or make or change any material Tax election, Tax accounting method, taxable year or period; file any amended material Tax Return, stop maintaining withholding certificates in respect of any person required to be maintained under the Internal Revenue Code or the Treasury Regulations, agree to an extension or waiver of any statute of limitations with respect to the assessment or determination of Taxes; settle or compromise any Tax liability of any Seller Entity; enter into any closing agreement with respect to any Tax; surrender any right to claim a Tax refund; or interest claim any other Tax relief or Tax benefit under a COVID-19 Relief Law;
(k) commence any Litigation other than in the Ordinary Course, or settle, waive or release or agree or consent to the issuance of any Order in connection with any Litigation (i) involving any Liability of any Seller Entity for money damages in excess of $50,000 in the aggregate or that would impose any restriction on the operations, business or Assets of any Seller Entity or the Surviving Corporation or (ii) arising out of or relating to the transactions contemplated hereby;
(l) (i) enter into, renew, extend, modify, amend or terminate any (A) Contract (1) with a term longer than one year or (2) that calls for aggregate payments of $50,000 or more, (B) Seller Contract or any Contract which would be a Seller Contract if it were in existence on the date hereof, (C) Contract referred to in Section 4.34 (or any other Contract with any broker or finder in connection with the Merger or any other transaction contemplated by this Agreement), or (D) Contract, plan, arrangement or other transaction of the type described in Section 4.35 or (ii) waive, release, compromise or assign any material rights or claims under any Contract described in the foregoing clause (i);
(i) enter into any new line of business or change in any Purchased Asset material respect its lending, investment, risk and asset-liability management, interest rate, fee pricing or other material banking or operating policies (including the offering of new products or any Mortgaged Property change in the maximum ratio or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof) or (ii) change its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing or buying or selling rights to service Loans except as required by rules or policies imposed by a Regulatory Authority;
(n) make, or commit to make, any capital expenditures in excess of $50,000 individually or $100,000 in the aggregate;
(o) except as required by applicable Regulatory Authorities, make any material changes in its policies and practices with respect to insurance policies including materially reduce the amount of insurance coverage currently in place or fail to renew or replace any existing insurance policies;
(p) materially change or restructure its investment securities portfolios, its investment securities practice or policies, its hedging practices or policies, or change its policies with respect to the classification or reporting of such portfolios or invest in any mortgage-backed or mortgage related securities which would be considered “high-risk” securities under applicable regulatory pronouncements or change its interest rate exposure through purchases, sales or otherwise, or the manner in which its investment securities portfolios are classified or reported;
(q) alter materially its interest rate or fee pricing policies with respect to depository accounts of any Seller Subsidiary or waive any material fees with respect thereto;
(r) take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code;
(s) make or acquire any Loan or issue a commitment (including a letter of credit) or renew or extend an existing commitment for any Loan, or amend or modify in any material respect any Loan (including in any manner that would result in any additional extension of credit, principal forgiveness, or effect any uncompensated release of collateral, i.e., at a value below the fair market value thereof as determined by Seller Bank), except (i) secured Loans or commitments for Loans with a principal balance less than $1,500,000 in compliance with Seller Bank’s underwriting policy and related Loan policies in effect as of the date of this Agreement consistent with past practices, including pursuant to an exception to such underwriting policy and related Loan policies that is senior reasonable in light of the underwriting of the borrower for such Loan or commitment (provided that this exception shall not permit any Seller Entity to acquire such Loans), (ii) unsecured Loans or commitments for Loans with a principal balance equal to or less than $250,000 in compliance with Seller Bank’s underwriting policy and related Loan policies in effect as of the date of this Agreement consistent with past practices, including pursuant to an exception to such underwriting policy and related Loan policies that is reasonable in light of the underwriting of the borrower for such Loan or commitment (provided that this exception shall not permit any Seller Entity to acquire such Loans), and (iii) amendments or modifications of any existing Loan in full compliance with Seller Bank’s underwriting policy and related Loan policies in effect as of the date of this Agreement consistent with past practices without utilization of any of the exceptions provided in such underwriting policy and related loan policies (provided that such Loan is not a Criticized Loan) (for purposes of requesting consent under this Section 6.2(s), Seller and Buyer shall follow the procedures set forth in Section 6.2(s) of Buyer’s Disclosure Memorandum);
(t) other than in the Ordinary Course, repurchase, or provide indemnification relating to, Loans in the aggregate in excess of $100,000;
(u) cancel, compromise, waive, or pari passu withrelease any material indebtedness owed to any Person or any rights or claims held by any Person, except for (i) sales of Loans and sales of investment securities, in each case in the rights and interests Ordinary Course or (ii) as expressly required by the terms of Purchaser therein any Contracts in force at the date of the Agreement;
(v) permit the commencement of any construction of new structures or facilities upon, or purchase or lease any real property in respect of any branch or other facility, or make any application to open, relocate or close any branch or other facility;
(w) enter into any securitizations of any Loans or create any special purpose funding or variable interest entity other than on behalf of clients;
(x) foreclose upon or take a deed or title to any commercial real estate (excluding real estate used solely for agricultural production) without first conducting a Phase I environmental assessment (except where such an assessment has been conducted in the preceding 12 months) of the property or foreclose upon any commercial real estate if such environmental assessment indicates the presence of Hazardous Material;
(y) notwithstanding any other provision hereof, take any action that is intended or which could reasonably be expected to (i) impede, adversely affect or delay consummation of the transactions contemplated by this Agreement or the receipt of any approvals of any Regulatory Authority or third party referenced in Section 7.4(a), (ii) result in any of the conditions set forth in ARTICLE 8 not being satisfied, or (iii) impair its ability to perform its obligations under this Agreement and or to consummate the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;transactions contemplated hereby, except as required by applicable Law; or
(xiiz) use agree to take, make any part commitment to take, or adopt any resolutions of Seller’s board of directors in support of, any of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyactions prohibited by this Section 6.2.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effecteffect with respect to any Transaction, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject Subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take engage in any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 10(u) unless it shall have provided Buyer fifteen (15) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any Purchased Asset, except for any (i) Liens created in favor of Buyer under this Agreement, (ii) Permitted Liens and (iii) Title Exceptions;
(e) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement, except for any (i) Liens created in favor of Buyer under this Agreement, (ii) Permitted Liens and (iii) Title Exceptions;
(ivf) intentionally omittedmodify in any material respect (with the parties hereto agreeing that changing officers is not material) or terminate any of the organizational documents of Seller;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Material Modification to any Purchased Asset without the prior written consent of Buyer in its sole and absolute discretion (unless the applicable Purchased Asset Documents impose a different standard of discretion on the lender or with respect to such Material Modification (including, without limitation, that such lender must act reasonably in its decision with respect to such Material Modification), in which case such different standard shall govern); provided that (i) Buyer agrees to respond to any request by Seller for approval of a Material Modification no later than five (5) Business Days after the submission by Seller of such request along with all information and documentation reasonably determined by Seller as being necessary for Buyer to evaluate such request (the “Request Date”), (ii) if Buyer fails to respond to such request within ten (10) Business Days of such Request Date, then Buyer shall be deemed to have consented to such Material Modification and (iii) if Seller enters into a Material Modification before obtaining the prior written consent of Buyer to enter into such Material Modification, then such action shall not, in and of itself, constitute a Default or Event of Default if (A) Seller determines, in its commercially reasonable discretion, that the failure to enter into such Material Modification would be materially adverse to Seller, Buyer or the Purchased Asset and (B) Seller repurchases the related Purchased Asset from Buyer pursuant to Section 3(c) within ten (10) Business Days from Seller’s receipt from Buyer of written notice denying Seller’s request for Buyer’s consent to such Material Modification within the period described in clause (ii) of the proviso to this Section 11(g).
(h) admit any additional members in Seller, or permit the sole member of Seller to assign or transfer all or any portion of its membership interests in Seller other than in accordance with Article 29pursuant to the terms of the Program Documents;
(ixi) permit take any action, file any Tax return, or make any election inconsistent with the organizational documents classification, treatment and reporting of Seller, for U.S. federal and applicable state and local income and franchise tax purposes, as a “qualified REIT subsidiary” (as defined in Section 856(i) of the Code) or jurisdiction other “disregarded entity” whose existence is not separate from that of organization REIT, its sole beneficial owner, including making an election under Section 301.7701-3(a) of Seller the United States Treasury Regulations to be amended in any material respectclassified as an association taxable as a corporation for U.S. federal income tax purposes;
(xj) after the occurrence and during the continuance continuation of an any Default or any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; provided, however, that nothing in this Section or Agreement shall restrict a distribution by Seller to REIT that is necessary for the REIT to comply with Section 857(a)(1) of the Code for a taxable year or to avoid the imposition of tax on REIT under Sections 857(b)(1), (b)(5) or 4981(a) of the Code.
(k) except as would not reasonably be expected to result in a Material Adverse Change, establish, maintain, contribute to or have any liability (contingent or otherwise) with respect to any Plans or Multiemployer Plans;
(xil) acquire send a Redirection Letter or maintain otherwise instruct any right Mortgagor or interest in servicer, as applicable, to make any payment due on such Purchased Asset or to any Mortgaged Property that is senior to, or pari passu with, account other than the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderRepo Collection Account;
(xiim) use use, or permit its respective directors, officers, employees or agents to use, any part Purchase Price paid by Buyer directly or indirectly (A) in furtherance of an offer, payment, promise to pay, or authorization of the proceeds payment or giving of money, or anything else of value, to any Person in violation of any Transaction hereunder Anti-Money Laundering Laws or OFAC Laws, (B) for the purpose of funding or financing any purpose which violatesactivities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in each case to the extent doing so would be inconsistent withviolate any Sanctions, or (C) in any other manner that would result in liability to any Person under any applicable Sanctions or result in the violation of any Anti-Money Laundering Laws, OFAC Laws or Sanctions; or
(n) engage in, or permit any director, officer, employee, agent or other Person acting on behalf of Seller in any capacity in connection with or directly benefitting from this Agreement to engage in, or to conspire to engage in, any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Money Laundering Laws, OFAC Laws, Sanctions or that would breach any applicable laws, rules, or regulations pertaining to bribery or corruption (“Anti-Corruption Laws”), including the FCPA, the U.K. Xxxxxxx Xxx 0000, and any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
(o) become an entity deemed to hold Plan Assets or cause transactions contemplated by this Agreement or any Program Document to violate any law applicable to Seller that regulates investments of, or fiduciary obligations with respect to, governmental plans and that is similar to the provisions of Regulation T, U Section 406 of ERISA or X Section 4975 of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyCode.
Appears in 1 contract
Samples: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Loans in question are simultaneously repurchased from Buyer;
(iiib) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Section 6 of this Agreement;
(c) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Hedging Transaction relating to the Purchased Loans for the benefit of any Person other than Buyer;
(ve) enter into any transaction of merger or consolidation or amalgamationpermit Guarantor to internalize its management without Buyer’s prior written approval, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)which shall not be unreasonably withheld;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any a Significant Modification other than in accordance with Article 29of any Purchased Loan without the prior written consent of Buyer, which consent shall not be unreasonably withheld;
(ixg) take any action or permit the organizational documents or jurisdiction of organization of Seller such action to be amended taken which would result in any material respecta Change of Control without the prior written consent of Buyer;
(xh) after the occurrence and during the continuance continuation of an any Event of Default or monetary Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xii) acquire sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) with respect to, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right any Plan or interest in a Purchased Asset hereunderpermit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(xiij) use engage in any part transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the proceeds of Code or substantially similar provisions under any Transaction hereunder for any purpose which violatesother federal, state or would be inconsistent withlocal laws, the provisions of Regulation T, U rules or X of the Board of Governors of the Federal Reserve System; andregulations;
(xiiik) directly, or through a Subsidiary, acquire or hold title make any future advances under any Purchased Loan to any real propertyunderlying obligor that are not permitted by the related Purchased Loan Documents;
(l) seek its dissolution, liquidation or winding up, in whole or in part; or
(m) incur any Indebtedness except as provided in Section 13(i) or otherwise cease to be a Single-Purpose Entity.
Appears in 1 contract
Samples: Master Repurchase Agreement (Starwood Property Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyers:
(i) 9.1 subject to Seller’s 's right to repurchase any Purchased Asset pursuant to the terms of this Agreementrepurchase, take any action that which would directly or indirectly impair or adversely affect Purchaser’s Buyers' title to any the Purchased Asset or other Purchased ItemAssets;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, 9.2 transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyers, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyers so long as such Purchased Assets are subject to this Agreement;
(iii) 9.3 create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 5 of this Agreement, except as described in Section 5 of this Agreement;
(iv) intentionally omitted9.4 modify or terminate any of the organizational documents of Seller in a manner adverse to the interests of Buyer under this Agreement;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) 9.5 consent or assent to any Significant Modification amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Assets other than in accordance with Article 29a Permitted Purchased Loan Modification; provided, that Buyers agree to use commercially reasonably efforts to respond to any such written request within five (5) Business Days;
(ix) permit 9.6 at any time during which an Event of Default on the organizational documents or jurisdiction of organization part of Seller has occurred and is continuing, vote or take any action to be amended in permit any material respect;rights afforded to a holder of the Purchased Securities under the related Securitization Documents; or
(x) 9.7 after the occurrence and during the continuance continuation of an any Event of DefaultDefault under Section 11(a) hereof, make any distributiondistribution (other than the minimum distributions necessary to maintain the REIT status of Seller), payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;; or
(xi) acquire or maintain 9.8 permit the ratio of Adjusted Total Indebtedness to Tangible Net Worth at any right or interest in time to be greater than 5.00 to 1.00.
9.9 permit its Fixed Charge Ratio to be less than 1.2 to 1.00.
9.10 permit Tangible Net Worth at any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would time to be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyless than $200,000,000.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is are no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset Securities or other the Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Securities or the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Securities or Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Securities or the Purchased Loans, except as described in Section 6 of this Agreement;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ive) intentionally omittedmodify in any material respect or terminate any of the organizational documents of Seller;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Portfolio Securities or the Purchased Loans other than in accordance with Article 29Section 7(f); Repurchase Agreement $250MM Facility
(g) admit any additional shareholders in Seller, or permit the respective sole shareholder of Seller to assign or transfer all or any portion of its shares in Seller;
(ixh) permit at any time after an Event of Default has occurred and is continuing, vote or take any action to exercise any rights afforded to a holder of the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;Portfolio Securities under the related Securitization Documents; or
(xi) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
Negative Covenants of Seller. On and as of the date hereof Closing Date and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not and shall not permit any Affiliate of Seller to without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than PurchaserBuyer;
(iiic) change Seller’s name or its jurisdiction of organization from the jurisdiction referred to in Section 10(b)(xxi) unless it shall have provided Buyer twenty (20) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any Purchased Asset, except for Permitted Liens;
(e) create, incur or permit to exist any Lien (other than Permitted Liens) in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivf) intentionally omittedmodify in any material respect or terminate any of the organizational documents of Seller;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Purchased Asset Modification other than to any Purchased Asset without Buyer’s prior written consent, which consent may be granted or withheld, in accordance with Article 29Buyer’s commercially reasonable discretion in the case of clause (A) of the definition of Significant Purchased Asset Modification, and in Buyer’s sole and absolute discretion in the case of clause (B) of the definition of Significant Purchased Asset Modification;
(ixh) admit any additional members in Seller, or permit the organizational documents or jurisdiction of organization respective sole member of Seller to be amended assign or transfer all or any portion of its membership interests in any material respectSeller;
(xi) take any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of federal, state and local income taxes, as a disregarded entity that is not separate from its member, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for federal income tax purposes;
(j) after the occurrence and during the continuance continuation of an any Default or any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;; or
(xik) acquire send a Redirection Letter, instruction letter or maintain otherwise instruct any right Mortgagor, issuer of a participation interest, servicer (including the Servicer pursuant to the Servicing Agreement), borrower, participant or interest in any other obligor, as applicable, to make any payment on such Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyaccount other than the Cash Management Account.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any the Purchased Asset or Assets and the other Purchased ItemItems;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or Assets and the other Purchased Item Items to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or Assets and the other Purchased Item Items with any Person other than Purchaser;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation not otherwise permitted under this Agreement, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) if the same would cause the Seller to violate the covenants contained in Article 12 or the Guarantor to violate the financial covenants contained in the Guaranty;
(ve) permit (through the giving of consent, waiver, failure to object (if Seller has such right) or otherwise) any Mortgaged Property or Mortgagor to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt without the consent of the Purchaser (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against the related Mortgaged Property);
(f) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except to Purchaser) without the consent of Purchaser in connection with its sole and absolute discretion, unless it will result in the sale or securitization satisfaction of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)Repurchase Obligations;
(vig) permit a Change of ControlControl of Seller;
(viih) intentionally omitted;
(viii) except to the extent expressly authorized in or required by such documents, consent or assent to any Significant Modification amendment, modification, waiver or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2927 and the Interim Servicing Agreement;
(ixi) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Purchaser in any material respectits sole and absolute discretion;
(xj) after the occurrence and during the continuance of a Default or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xik) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;Documents; and
(xiil) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any liens created in favor of Buyer under this Agreement or hereafter acquired, the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omittedmodify or terminate the Master Seller LLC Agreement or any of the organizational documents of Seller;
(vf) enter into any transaction of merger or consolidation or amalgamationinto, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any amendment or modification to, or termination of, or waiver of any provision of, any of the Purchased Loan Documents relating to any Purchased Loan, to the extent that such amendment, modification, termination or waiver constitutes a Significant Modification other than in accordance with Article 29respect to such Purchased Loan;
(ixg) transfer or permit the organizational documents or jurisdiction of organization of Seller to be amended transferred any direct or indirect ownership interests in Seller, or take any material respectaction or permit any action to be taken, if any such transfers and/or actions, individually or in the aggregate, would result in a Change of Control.
(h) take any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for federal income tax purposes;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xij) acquire send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) with respect to, any Plan or Multiemployer Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or Multiemployer Plan other than Plans or Multiemployer Plans the rights and interests of Purchaser therein under this Agreement and liability for which would not reasonably be expected in the other Transaction Documents unless such right or interest aggregate to result in a Purchased Asset hereunderMaterial Adverse Effect;
(xiil) use engage in any part transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the proceeds Code or substantially similar provisions under any other federal, state or local laws, rules or regulations (“Similar Law”); provided, however, that Buyer is not using plan assets within the meaning of 29 C.F.R. § 2510.3-101 as modified in operation by Section 3(42) of ERISA or assets of a plan subject to a Similar Law;
(m) make any future advances under any Purchased Loan to any underlying obligor that are not expressly required by the related Purchased Loan Documents;
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) or otherwise cease to be a Single-Purpose Entity.
(p) exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any Transaction hereunder foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any purpose which violatesPurchased Loan;
(q) Transfer or permit to be Transferred, in whole or in part, any Related Interest or Mezzanine Loan held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Related Interest or Mezzanine Loan held by any other Person, except to a Qualified Institutional Lender;
(r) consent to, or would grant any waiver with respect to, any incurrence of additional debt by the Mortgagor or any mezzanine loan by any direct or indirect beneficial owner of the Mortgagor;
(s) cause any Purchased Loan to be inconsistent withserviced by any servicer other than a servicer expressly approved in writing by Buyer; or
(t) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the provisions making or receiving of Regulation Tany contribution of funds, U goods, or X services, to or for the benefit of a Prohibited Person; or engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Board prohibitions set forth in Executive Order 13224 issued on September 24, 2001. Seller further covenants and agrees to deliver (from time to time) to Buyer any such certification or other evidence as may be requested by Buyer in its sole and absolute discretion, confirming that Seller has not, to its knowledge, engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of Governors any contribution of the Federal Reserve System; and
(xiii) directlyfunds, goods, or through services, to or for the benefit of a Subsidiary, acquire or hold title to any real propertyProhibited Person.
Appears in 1 contract
Samples: Master Repurchase Agreement (LoanCore Realty Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this each Purchase Date and until the Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s 's right to repurchase any Purchased Asset pursuant to the terms of this Agreementrepurchase, take any action that which would directly or indirectly impair or adversely affect Purchaser’s Buyer's title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Loans in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Section 6 of this Annex I;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Annex I;
(ive) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Hedging Transaction for the benefit of any Person other than Buyer;
(vf) enter into terminate any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course organizational documents of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any a Significant Modification or any extension or or termination of any note, loan agreement, mortgage, pledge agreement or guaranty relating to the Purchased Loans or other than in accordance with Article 29material agreement or instrument relating to the Purchased Loans without the prior written consent of Buyer;
(ixh) take any action or permit the organizational documents or jurisdiction of organization of Seller such action to be amended taken which would result in any material respecta Change in Control;
(xi) after the occurrence and during the continuance continuation of an any Event of Default or monetary Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; or
(j) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to any Plan and shall not permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to any Plan;
(xik) acquire or maintain any right or interest engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under the Agreement, the Purchased Asset Loans or any Mortgaged Property that is senior toTransaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or pari passu withsubstantially similar provisions under any other federal, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right state or interest in a Purchased Asset hereunder;local laws, rules or regulations; or
(xiil) use make any part of the proceeds of future advances under any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title Purchased Loan to any real propertyunderlying obligor which are not permitted by the related Purchased Loan Documents.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while of this Agreement or the Transaction hereunder and each Purchase Date and until this Agreement is no longer in effectforce with respect to any Transaction, Seller shall not covenants that it will not:
(a) exercise any right to change or consent to a change in a Servicer of Purchased Assets without the prior written consent of Purchaserthe Buyer, which or permit any Person other than the Servicer or the Subservicer, as the case may be granted or denied at Purchaser’s sole and absolute discretion:be, to service Purchased Assets without the prior written consent of Buyer;
(ib) subject to Seller’s right to repurchase after the occurrence and during the continuation of an Event of Default make any Purchased Asset pursuant to the terms of this Agreement, Restricted Payment;
(c) take any action that which would directly or indirectly impair or adversely affect Purchaser’s (i) Buyer's title to or lien on any Purchased Asset Assets or any other Collateral or (ii) the value of any Purchased ItemAssets or any other Collateral except, in the case of this clause (ii), any action solely relating to, resulting solely from, or arising solely out of the financial condition of the Seller;
(iid) at any time a Transaction is outstanding with respect to any Purchased Asset, transferpledge, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, transfer any interest in any the Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) nor will Seller create, incur, assume or suffer permit to exist any Lien Lien, encumbrance or security interest in or on the Purchased Assets or any of the Collateral;
(e) permit or allow others to amend, modify, terminate, or waive any provision of any Purchased Asset in any manner which should reasonably be expected to materially and adversely affect the value of such Purchased Asset;
(f) take any action which could reasonably be expected to result in a Material Adverse Effect;
(g) engage, to any substantial extent, in any line or lines of business activity other than the businesses now generally carried out by it, or cease or take any action to cease (or permit any Subsidiary of Seller to cease or to take any action to cease) to be in the business of originating Mortgage Loans;
(A) permit any of its propertySubsidiaries to sell, assetslease or otherwise transfer any property or assets to, revenueor purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates (an "Affiliate Transaction") unless the terms thereof (i) are no less favorable to the Seller or such Subsidiary than those that could be obtained at the time of such transaction in arm's-length dealings with a Person who is not such an Affiliate, (ii) if such Affiliate Transaction involves an amount in excess of $2,000,000 (or the equivalent amount in any foreign currency) (x) are set forth in writing and (y) have been approved by a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction and (iii) if such Affiliate Transaction involves an amount in excess of $10,000,000 (or the equivalent amount in any foreign currency), have been determined by a nationally recognized investment banking firm to be fair from a financial standpoint, to the Seller and its Subsidiaries.
(B) Without limiting the generality of any other provisions set forth in this Agreement, the Purchased Assetsprovisions of this Section (A)(i) shall not prohibit (i) any Permitted Investment, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the other Collateralfunding of, whether now owned employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or hereafter acquired, other than similar rights to employees and directors of the Liens and security interest granted by Seller pursuant to plans approved by the Transaction Documents;
Board of Directors, (iv) intentionally omitted;
(v) enter into any transaction of merger loans or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets advances to employees in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
the past practices of the Seller or its Subsidiaries, but in any event not to exceed $10,000,000 (or the equivalent amount in any foreign currency) in aggregate principal amount outstanding at any one time, (v) the payment of reasonable fees to directors of the Seller and its Subsidiaries who are not employees of the Seller or its Subsidiaries, (vi) permit any Affiliate Transactions between the Seller and a Change Subsidiary or between consolidated Subsidiaries (in each case other than any Subsidiary that is an "affiliate" (as such term is defined in the Securities and Exchange Act) of Control;
any Affiliate (other than any Subsidiary) of the Seller and (vii) intentionally omitted;transactions pursuant to any agreement as in existence as of the date between the Seller or its Subsidiaries and Continental Grain Company, a Delaware corporation, or one of its Subsidiaries.
(viiii) consent become an "investment company" or assent to any Significant Modification other than in accordance with Article 29;a company "controlled" by an "investment company, within the meaning of the Investment Company Act, as amended.
(ixj) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part move its chief executive office from its address as of the proceeds date hereof unless it shall have provided Buyer 30 days' prior written notice of any Transaction hereunder for any purpose which violates, or would be inconsistent with, such change and an amendment to the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyUCC-1 filed pursuant thereto.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:69
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by such Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) if the same would cause such Seller to violate the covenants contained in this Agreement or Guarantor to violate the financial covenants contained in the Guaranty;
(ve) enter into engage in, seek or consent to any transaction of merger or consolidation or amalgamationdissolution, or liquidatewinding up, wind up or dissolve itself (or suffer any Division, liquidation, winding up or dissolution)consolidation, or sell merger, sale of all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after its business), transfer of membership interests or the repurchase thereof in accordance with this Agreement)like;
(vif) permit a Change of ControlControl of such Seller;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification of any Purchased Asset Documents or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2928 and the Servicing Agreement;
(ixh) permit the organizational documents or jurisdiction organizational structure of organization of any Seller to be amended in any material respecta manner that is adverse to the interests of Purchaser or inconsistent with the provisions of the Transaction Documents;
(xi) after the occurrence and during the continuance of a monetary Default (provided, that any Seller has Knowledge of or has received written notice of such monetary Default) or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of such Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of such Seller;
(xij) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in is a Purchased Asset hereunderhereunder (provided that, notwithstanding the foregoing, Affiliates of Seller may acquire or maintain Companion Interests with respect to Starwood Pari Passu Participations);
(xiik) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; andor
(xiiil) directly, take any action that will cause its “centre of main interests” (as such term is used in the Insolvency Regulation) to be located in the United Kingdom or through Europe or register as a Subsidiary, acquire or hold title to company in any real propertyjurisdiction other than Delaware.
Appears in 1 contract
Samples: Master Repurchase Agreement (Starwood Property Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any such Purchased Asset or other Purchased Item with any Person other than PurchaserBuyer, except where such Purchased Asset is simultaneously repurchased from Buyer in accordance with this Agreement;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiie) consent or assent to any a Significant Modification other than in accordance with Article 29of any Purchased Asset without the prior written consent of Buyer (which shall not be unreasonably withheld, delayed or conditioned so long as no Event of Default is continuing);
(ixf) take any action or permit the organizational documents or jurisdiction of organization of Seller such action to be amended taken which would result in any material respecta Change of Control without the prior written consent of Buyer in its sole discretion; provided Xxxxx’s consent shall not be unreasonably withheld with respect to a Change of Control which relates to CLNS’s Control over Colony Capital Operating Company, LLC;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws to which the assets of Seller are subject assuming in all events that the assets of Buyer do not include Plan Assets;
(j) [Intentionally omitted];
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned);
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents without the prior written consent of Buyer unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use any part of the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business (A) of or with any Person that, at the time of such funding or facilitation, is the subject of Sanctions, or (B) in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer);
(p) knowingly, directly or indirectly use the proceeds from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve Systemregulations; andor
(xiiiq) directly, or through register as a Subsidiary, acquire or hold title to company in any real propertyjurisdiction other than the State of Delaware.
Appears in 1 contract
Samples: Tenth Omnibus Amendment to Transaction Documents (BrightSpire Capital, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Buyer in its sole and absolute discretion;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of the Purchased Assets, the other Collateral or Purchased Items, other than the security interest granted by Seller pursuant to Article 5 of this Agreement;
(e) create, incur, assume or suffer to exist any Lien in or on upon any of its property, assets, revenue, the Purchased Assets, the other Collateralassets or revenues, whether now owned or hereafter acquired, other than except for the following, hereinafter referred to as the “Permitted Liens”:
(i) Liens and security interest granted for taxes not yet due or which are being contested in good faith by Seller appropriate proceedings, provided, that adequate reserves with respect thereto are maintained on the books of the related borrower or its subsidiaries, as the case may be, in conformity with GAAP; and
(ii) Liens created pursuant to the Transaction Documents;
(iv) intentionally omitted;
(vf) enter into any transaction of merger or consolidation or amalgamation, that is likely to have a material adverse effect on the creditworthiness or financial condition of Seller, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2926;
(ixh) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Buyer in any material respectits sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xii) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiij) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiik) directlyenter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(l) (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or through fail to contest in a Subsidiarytimely and appropriate manner, acquire any proceeding or hold title petition described in clause (i), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Seller or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any real propertysuch proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; or
(m) permit any two (2) of Sxxxxxx X. Xxxxxx, Txxxxx X. Xxxxxxx and Gxxxxxxx X. Xxxxxx to cease to be employed as full-time senior executives by CT Investment Management Co., LLC (or any successor entity with respect to the direct or indirect management of Seller and/or the Purchased Assets), and replacements for such individuals acceptable to Buyer in its sole discretion have not been appointed within thirty (30) days of the date on which the second (2nd) of such individuals ceased to be so employed. Compliance with covenants in this Article 9 must be evidenced by a compliance certificate furnished together therewith as further provided in Article 10(j)(ii) below, and compliance with all such covenants are subject to verification by Buyer.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser; provided that this clause (b) shall not prevent any transfer of the Purchased Assets to Purchaser in accordance with the Transaction Documents;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralCollateral or the Collection Account, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) to the extent the same would cause Seller to violate the covenants contained in this Agreement or Guarantor to violate the financial covenants contained in the Guaranty;
(ve) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the Transactions or the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vif) permit suffer a Change of Control;
(viig) intentionally omittedpermit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property, any Capital Stock in any Mortgagor securing any Mezzanine Loan, Mortgagor or Mezzanine Borrower, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, senior or pari passu mortgage debt, junior mortgage debt or mezzanine debt (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against any related Mortgaged Property);
(viiii) prior to an Event of Default, take any action or effect any Material Modification of any Purchased Asset or (ii) after an Event of Default, consent or assent to any Significant Modification amendment, modification, waiver or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to any Purchased Asset or other than agreement or instrument relating to any Purchased Asset, in accordance with Article 29either case, without first having given prior notice thereof to Purchaser and receiving the prior written consent of Purchaser;
(ixi) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xj) permit its assets to constitute “plan assets” within the meaning of 29 C.F.R Section 2510.3 101, as modified by Section 3(42) of ERISA;
(k) after the occurrence and during the continuance of a Default, an Event of Default or a Limited Crossed Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of SellerSeller provided, however, that notwithstanding anything in this paragraph (k) to the contrary, Seller shall be permitted to declare and/or pay any dividends and distributions to its shareholders or equity owners in order for Guarantor to (x) maintain its status as a real estate investment trust (as defined under Section 856 of the Code) for U.S. federal and state income tax purposes and (y) avoid the payment of federal or state income or excise tax;
(xil) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property relating to any Purchased Asset that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiim) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiin) directly, or through a Subsidiary, acquire or hold title to any real property; and
(o) make any election or otherwise take any action that would cause Seller to be treated as an association taxable as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Master Repurchase Agreement (Fortress Credit Realty Income Trust)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of PurchaserAdministrative Agent, which may be granted or denied at Purchaser’s sole and absolute discretionon behalf of Buyers:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that would which would, either directly or indirectly indirectly, materially impair or adversely affect PurchaserAdministrative Agent’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, including, without limitation, any effective transfer or other disposition as a result of a Division of Seller, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserAdministrative Agent, on behalf of Buyers, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserAdministrative Agent, on behalf of Buyers, except where the Purchased Assets in question are simultaneously repurchased from Administrative Agent, on behalf of Buyers, which may be transferred either back to Seller or at Seller’s direction;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, charge, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Administrative Agent, on behalf of Buyers;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiie) consent or assent to any a Significant Modification other than in accordance with Article 29of any Purchased Asset without the prior written consent of Administrative Agent;
(ixf) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect[reserved];
(xg) after the occurrence and during the continuance continuation of an any monetary Default, material non-monetary Default or any Event of Default, make any distributiondistribution (other than distributions as necessary to enable Guarantor to maintain its status as a real estate investment trust within the meaning of the Code and avoid any excise tax payable pursuant to Section 4981 of the Code (in each case, without regard to Guarantor’s ability to make consent dividends within the meaning of Section 565 of the Code)), payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or except as would not have a Material Adverse Effect, permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Administrative Agent or any Buyer, of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any law or regulation substantially similar to Section 406 of ERISA or Section 4975 of the Code;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents, except to the extent approved by Administrative Agent on behalf of Buyers;
(k) seek its dissolution, liquidation, Division or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof, or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Administrative Agent, on behalf of Buyers, in its sole discretion exercised in good faith;
(n) except to the extent contributed by Seller or any of its Affiliates to a collateralized loan obligation transaction, acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Administrative Agent, on behalf of Buyers, therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) directly or indirectly use the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or in any other manner that would result in a violation of Sanctions by any Person (including Administrative Agent or any Buyer); or
(p) directly or, to its knowledge, indirectly use the proceeds from any Transaction or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any activity that would violate applicable anti-corruption laws, rules, or regulations.
(q) use any part of escrow or reserve held pursuant to the proceeds of any Transaction hereunder Purchased Asset Documents in its possession or control for any purpose which violates, or would be inconsistent with, reason other than uses permitted under the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyPurchased Asset Documents.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (ACRES Commercial Realty Corp.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the a Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(i) subject Subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this AgreementAsset, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) to the extent the same would cause Seller to violate the covenants contained in this Agreement or Guarantor to violate the financial covenants contained in the Guaranty;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the Transactions or the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omittedpermit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property, any Capital Stock in any Mortgagor securing any Mezzanine Loan, Mortgagor or Mezzanine Borrower, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, senior or pari passu mortgage debt, junior mortgage debt or mezzanine debt (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against any related Mortgaged Property);
(viii) with respect to any Purchased Asset, consent or assent to any Significant Material Modification of any related Purchased Asset Document other than in accordance with Article 2929 and the Servicing Agreement or Servicer Letter (as applicable);
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of a monetary Default or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property relating to any Purchased Asset that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony Credit Real Estate, Inc.)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any such Purchased Asset or other Purchased Item with any Person other than PurchaserBuyer, except where such Purchased Asset is simultaneously repurchased from Buyer in accordance with this Agreement;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Asset without the prior written consent of merger Buyer (which shall not be unreasonably withheld, delayed or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all conditioned so long as no Event of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this AgreementDefault is continuing);
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws assuming in all events that the assets of Buyer do not include Plan Assets;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned);
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents without the prior written consent of Buyer unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use any part of the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person (1) to fund or facilitate any activities or business of or with any Person or in any country or territory that is the subject of Sanctions or (1) in any other manner that would result in a violation of Sanctions by any Person (including Buyer); or
(p) knowingly, directly or indirectly use the proceeds from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyregulations.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyers:
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, 9.1 take any action that which would directly or indirectly impair or adversely affect Purchaser’s the Buyers’ title to any the Purchased Asset or other Purchased Item;Assets; or
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, 9.2 transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than Purchaserthe Buyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than Purchaser;the Buyers so long as such Purchased Assets are subject to this Agreement; or
(iii) 9.3 create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or other Collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Section 5 of this Agreement, except as described in Section 5 of this Agreement; or
9.4 modify or terminate any of the Transaction Documents;organizational documents of Seller; or
(iv) intentionally omitted;
(v) 9.5 change its corporate or limited liability company structure, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with to the sale extent of assets for which the related Repurchase Price has been paid to Buyer) or securitization acquire or form any Subsidiaries; or
9.6 change its fiscal year or method of accounting, unless Seller shall give the Buyers at least fifteen (15) days prior written notice of any such requested change, which notice shall include a detailed explanation of the Purchased Assets in changes intended to be made and pro forma financial statements demonstrating the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);impact thereof; or
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) 9.7 consent or assent to any Significant Modification amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Assets other than a Permitted Purchased Loan Modification; or
9.8 admit any additional members in accordance with Article 29;
(ix) Seller, or permit the organizational documents Guarantor to assign or jurisdiction transfer all or any portion of organization of Seller to be amended its member interest in Seller; or
9.9 at any material respect;
(x) after the occurrence and time during the continuance of which an Event of Default on the part of Seller has occurred and is continuing, vote or take any action to permit any rights afforded to a holder of the Purchased Securities under the related Securitization Documents; or
9.10 so long as any Default, Event of Default or Margin Deficit shall be continuing, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;; provided, that (i) the restriction set forth in this Section 9.10 shall not prohibit Seller from taking any of the foregoing actions set forth in this Section 9.10 (to the extent that such actions are permitted by its memorandum and articles of association) so long as any Default, Event of Default or Margin Deficit is not continuing) and (ii) irrespective of whether any Default or Event of Default or Margin Deficit shall have occurred and be continuing, Seller may make such payments to the extent necessary to maintain its status as a “Qualified REIT Subsidiary” or 44
(xi) 9.11 enter into any transaction with an Affiliate; unless such transaction is upon fair and reasonable terms no less favorable to Seller than it would obtain in a comparable arm’s length transaction with a Person which is not an Affiliate; or
9.12 acquire or maintain maintain, nor allow any Affiliate to acquire or maintain, any right or interest not disclosed in writing to Buyer in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Repurchase Documents; or
(i) own any property or any other assets other than the Purchased Assets, cash and its interest under any associated Hedging Agreements; (ii) engage in any business other than the acquisition, ownership, financing and disposition of Purchased Assets in accordance with its operating agreement and the applicable provisions of the Transaction Documents unless such right or interest in (provided that the acquisition and ownership of an asset that Seller reasonably expects will be a Purchased Asset hereunder;
which asset does not become a Purchased Asset because Buyer elects not to enter into a Transaction with respect to such asset shall not be a violation of this clause (ii) if Seller sells such asset promptly after Buyer elects not to enter into a related Transaction, but in no event later than 30 days after Seller’s acquisition thereof); (iii) enter into any transaction, contract or agreement with any of its Affiliates, except upon terms and conditions commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with a Person other than such Affiliate; (iv) incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than to the extent permitted under the Transaction Documents; (v) make any loans or advances to any other Person, and shall not acquire obligations or securities of the Guarantor or any Affiliate of any member (other than in connection with the acquisition of Purchased Assets) or any other Person; (vi) commingle its funds or other assets with those of any of its Affiliates or any other Person; (vii) hold itself out to be responsible for the debts or obligations of any other Person; (viii) seek or take, and will not encourage or otherwise permit the Guarantor to seek or take, any of the following actions with respect to Seller: (a) dissolve, liquidate or wind up, in whole or in part; (b) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; (c) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the United States Bankruptcy Code or under the laws of any other applicable jurisdiction or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of such member or Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; (d) amend the memorandum and articles of association of Seller; (e) enter into any transaction with an Affiliate not in the ordinary course of Seller’s business; or (f) permit or cause the Guarantor to withdraw as the sole member of Seller; (ix) have any liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, ownership, financing and disposition of Purchased Assets; (x) pledge its assets to secure the obligations of any other Person, other than a Buyer; (xi) guarantee or become obligated for the debts of any other Person; (xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiaryform, acquire or hold title any subsidiary, or own any equity interest in any other entity except interests that are part of the Purchased Assets (or assets which are proposed to become Purchased Assets) or that are acquired in any real propertyforeclosure on, or other realization of collateral from, any of the Purchased Assets; or (xiii) identify itself or any of its Affiliates as a division or part of the other.
Appears in 1 contract
Samples: Master Repurchase Agreement (American Mortgage Acceptance Co)
Negative Covenants of Seller. On and as of From the date hereof and at all times while through the Closing Date, Seller will not, except as otherwise permitted by this Agreement or consented to by Buyer in writing:
(a) mortgage, pledge or hypothecate or otherwise subject to a Lien (other than a Permitted Lien) any of the Transaction hereunder is Assets, Contracts, Water Rights, Real Property or the Leased Real Property to secure any indebtedness or for any other purpose;
(b) lease, license, sell and leaseback or otherwise surrender, relinquish, sell or dispose of any Assets, Contracts, Water Rights, Real Property or the Leased Real Property, except for sales of used, immaterial Equipment in effectthe ordinary course of business consistent with past practice;
(c) merge or consolidate with, purchase substantially all of the assets of, or otherwise acquire any business or any proprietorship, firm, association, corporation or other business organization or division thereof to the extent that such merger, consolidation, purchase or acquisition would affect, relate to, or be incorporated into the System;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization that affects the System;
(e) to the extent applicable to, or relating to, the FC Water System and/or any Employees, (i) enter into or amend any collective bargaining agreement, recognize any labor organization as the representative of the Employees for purposes of bargaining over terms and
(f) change any of the accounting methods used by Seller shall not without in connection with the prior written consent System unless required by applicable Law;
(g) enter into any new lease or license arrangement, acquire real property or make any new capital expenditure or other expenditures in excess of Purchaser$50,000 for a single item or
(h) pay, which may be granted discharge, settle or denied at Purchaser’s sole and absolute discretion:satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise) relating to the System, other than the payment, discharge, settlement or satisfaction in the ordinary course of business, consistent with past practice;
(i) enter into any Contract relating to the System that is not either in the ordinary course of the System’s operations, or which has total value (for goods, services, or otherwise) of over $10,000 (including any Contract or transaction with a Related Person); assign any Contract; modify or amend any Contract; waive, release, assign or fail to exercise or pursue any rights or claims under any Contract or accelerate, terminate or cancel Contract; or modify or amend any agreements, documents, easements, rights of way or other instruments constituting the Water Rights (including all amendments or modifications thereto) or fail to exercise or pursue any rights or claims thereunder or terminate or cancel any such agreement, document, easement, right of way or instrument.
(j) acquire any asset or assets for the System except for purchases of components, raw materials or supplies in the ordinary course of business consistent with past practice;
(k) disclose any confidential or proprietary information of Seller concerning the System other than in the ordinary course of business and pursuant to a confidentiality agreement restricting the right of the recipient thereof to use and disclose such confidential or proprietary information or as may be required by applicable Law;
(l) waive any material benefits of, or agree to modify in any material respect, or, subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms hereof, fail to enforce in any material respect, or consent to any matter with respect to which consent is required under, any material confidentiality, standstill or similar contract for the benefit of the System;
(m) sell, transfer or license to any Person or modify any rights to (i) any Seller Intellectual Property Rights, except in the ordinary course of business consistent with past practice, or (ii) buy, transfer from or license from any Person any Intellectual Property Rights of any other Person for the System except in the ordinary course of business consistent with past practice;
(n) enter into any Contract containing any restriction on the ability of Seller to assign all or any portion of its rights, interests or obligations thereunder, unless such restriction expressly excludes any assignment to Buyer and any of its Subsidiaries in connection with or following the consummation of the transactions contemplated by this Agreement; (o) enter into, approve or recommend (or propose publicly to approve or recommend) any agreement requiring, or reasonably expected to cause, Seller to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere or be inconsistent with, any of the transactions contemplated by this Agreement or requiring, or reasonably expected to cause, Seller to fail to comply with this Agreement;
(p) take any action that would directly or indirectly impair or adversely affect Purchaser’s title is reasonably likely to result in any Purchased Asset or other Purchased Item;of the conditions set forth in Article VI not being satisfied as of the Closing Date; or
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(vq) enter into any transaction of merger agreement or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer arrangement obligating Seller to take any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with actions prohibited by this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertySection 5.3.
Appears in 1 contract
Samples: Asset Purchase Agreement
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreementand its other activities permitted hereunder, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Asset without the prior written consent of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)Buyer;
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any monetary Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws; provided, however, that Buyer is not using Plan Assets;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer in its sole discretion; or
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use any part of the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person: (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer); or
(p) knowingly, directly or indirectly use the proceeds from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyregulations.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (LoanCore Realty Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any such Purchased Asset or other Purchased Item with any Person other than PurchaserBuyer, except where such Purchased Asset is simultaneously repurchased from Buyer in accordance with this Agreement;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to Section 6 of this Agreement or the Transaction DocumentsForeign Assignment Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiie) consent or assent to any a Significant Modification other than in accordance with Article 29of any Purchased Asset without the prior written consent of Buyer (which shall not be unreasonably withheld, delayed or conditioned so long as no Event of Default is continuing);
(ixf) take any action or permit the organizational documents or jurisdiction of organization of Seller such action to be amended taken which would result in any material respecta Change of Control without the prior written consent of Buyer in its sole discretion; provided Buyer’s consent shall not be unreasonably withheld with respect to a Change of Control which relates to CLNS’s Control over Colony Capital Operating Company, LLC;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws to which the assets of Seller are subject assuming in all events that the assets of Buyer do not include Plan Assets;
(j) [Intentionally omitted];
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned);
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents without the prior written consent of Buyer unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use any part of the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business (A) of or with any Person that, at the time of such funding or facilitation, is the subject of Sanctions, or (B) in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer);
(p) knowingly, directly or indirectly use the proceeds from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve Systemregulations; andor
(xiiiq) directlytake any action that will cause its “centre of main interests” (as such term is used in the European Insolvency Regulation) to be located in the United Kingdom, Europe or through any jurisdiction other than the United Sates or register as a Subsidiary, acquire or hold title to company in any real propertyjurisdiction other than the State of Delaware.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Colony Credit Real Estate, Inc.)
Negative Covenants of Seller. On From and as of after the date hereof and through the Closing Date and except with the specific prior written consent of Buyer, Seller covenants and agrees as follows:
(a) Seller shall not sell, transfer or dispose of any of the Assets other than in the ordinary course of business; provided, however, that any sale, transfer or disposition of any Assets in the ordinary course of business shall not exceed Assets valued at all times while this Agreement more than $5,000;
(b) Seller shall not grant an Encumbrance (except a Permitted Encumbrance) on any of the Assets or allow any such Encumbrance (except a Permitted Encumbrance) to occur or to be created;
(c) Except in the Transaction hereunder is in effectordinary course of business, Seller shall not acquire any tangible properties or assets relating to the Business;
(d) Seller shall not enter into any employment and/or any independent contractor agreements relating to services to be rendered in connection with the Business or any of the Assets except in the ordinary course of business or the prior approval of Buyer;
(e) Except in the ordinary course of business, Seller shall not amend, modify or terminate, without the prior written consent of PurchaserBuyer, any of the Contracts, Leases or other agreements, if any, to be assumed by Buyer hereunder;
(f) Seller shall not incur any indebtedness for which any of the Assets are, or may be granted be, subject to any Encumbrance or denied at Purchaser’s sole and absolute discretion:claim, either express or implied;
(g) Seller shall not enter into any undertaking to furnish services for any consideration other than money with respect to the operation of the Assets;
(h) Seller shall not forgive, discharge or write off any debts or receivables owing to Seller in connection with the Business, including but not limited to those Accounts Receivable listed on Schedule 2.1(t);
(i) subject to Seller’s right to repurchase Seller shall not incur any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (Accounts Payable except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after Business, consistent with the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part historical operation of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve SystemBusiness; and
(xiiij) directlySeller shall pay all Accounts Payable when due, or through a Subsidiary, acquire or hold title to any real propertyin accordance with the ordinary course of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Teletouch Communications Inc)
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to except for any Purchased AssetLoan which has been repurchased by Seller in accordance with this Agreement, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer at least thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on Seller’s interest in any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any liens created in favor of Buyer under this Agreement or hereafter acquired, the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omitted;
(v) enter into modify or terminate the Master Seller LLC Agreement or any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course organizational documents of Seller’s business after , provided that Buyer shall not unreasonably withhold or delay its consent to any proposed modification to the repurchase thereof in accordance with this AgreementMaster Seller LLC Agreement (excluding any modification to the SPE provisions set forth therein);
(vif) enter into, consent or assent to or take any Material Action;
(g) transfer or permit to be transferred any direct or indirect ownership interests in Seller, or take any action or permit any action to be taken, if any such transfers and/or actions, individually or in the aggregate, would result in a Change of Control.
(h) take any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of U.S. federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of SellerSeller (unless the same is necessary for Sponsor to maintain its status as a REIT, or a qualified subsidiary thereof, under the Code);
(xij) acquire send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) with respect to, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right any Plan or interest permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan, in each case, which could reasonably be likely to have a Purchased Asset hereunderMaterial Adverse Effect;
(xiil) use engage in any part transaction that would cause the assets of Seller to be deemed to constitute “plan assets” for purposes of ERISA;
(m) make any future advances under any Purchased Loan to any underlying obligor that are not expressly required by the related Purchased Loan Documents;
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) or otherwise cease to be a Single-Purpose Entity.
(p) exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan;
(q) except as otherwise expressly permitted in any intercreditor agreement, co-lender agreement or participation agreement for the applicable Purchased Loan as in effect on the Purchase Date, or any such similar agreement or amendment thereto entered into subsequent to the applicable Purchase Date that has been approved by Buyer, or as otherwise expressly agreed by Buyer pursuant to the terms of the proceeds Confirmation and/or the Senior Interest Side Letter for the applicable Purchased Loan, Transfer or permit to be Transferred, in whole or in part, any Related Interest or Mezzanine Loan related to any Purchased Loan held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Transaction hereunder for Related Interest or Mezzanine Loan related to any purpose which violatesPurchased Loan held by any other Person, except to a Qualified Institutional Lender;
(r) consenting to, or would be inconsistent withgranting of any waiver with respect to, any incurrence of additional debt by the Mortgagor or any mezzanine loan by any direct or indirect beneficial owner of the Mortgagor;
(s) knowingly: (i) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the provisions making or receiving of Regulation Tany contribution of funds, U goods, or X services, to or for the benefit of a Prohibited Person; or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Board prohibitions set forth in Executive Order 13224 issued on September 24, 2001. Seller further covenants and agrees to deliver (from time to time) to Buyer any such certification or other evidence as may be requested by Buyer in its sole and absolute discretion, confirming that neither of Governors Seller nor Sponsor has, to the best knowledge of Seller, engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the Federal Reserve Systemmaking or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person; andor
(xiiit) directly, or through cause any Purchased Loan to be serviced by any servicer other than a Subsidiary, acquire or hold title to any real propertyservicer expressly approved in writing by Buyer.
Appears in 1 contract
Samples: Master Repurchase Agreement (NorthStar Real Estate Income II, Inc.)
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose ofof (including, without limitation, any effective transfer or other disposition as a result of a division of Seller), or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except, in each case, for the establishment of any new Series Seller in connection with any Transaction in accordance with the provisions of Section 3(n) hereof;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer at least thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any liens created in favor of Buyer under this Agreement or hereafter acquired, the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omitted;
(v) enter into modify or terminate the Master Seller LLC Agreement or any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets organizational documents of Seller (provided, however, notwithstanding anything to the contrary in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement, Buyer hereby consents to Member’s execution of that certain Second Amended and Restated Limited Liability Company Agreement of Master Seller dated as of February 9, 2017);
(vif) permit a Change of Control;
(vii) intentionally omitted;
(viii) enter into, consent or assent to any Significant Modification amendment or supplement to, or termination of, or waiver of any provision of, any of the Purchased Loan Documents relating to any Purchased Loan, other than in accordance with Article 29Section 7(e) hereof;
(ixg) transfer or permit the organizational documents or jurisdiction of organization of Seller to be amended transferred any direct or indirect ownership interests in Seller, or take any material respectaction or permit any action to be taken, if any such transfers and/or actions, individually or in the aggregate, would result in a Change of Control.
(h) take any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of U.S. federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock direct or indirect equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xij) send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan
(l) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code;
(m) make any future advances under any Purchased Loan to any underlying obligor that are not (i) protective advances or (ii) future advances which are (x) permitted or contemplated by the related Purchased Loan Documents and (y) in accordance with the budgets and capital expenditure plans approved under the Purchased Loan Documents (and, if applicable, approved by Buyer under Section 3(o) hereof);
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) or otherwise cease to be a Single-Purpose Entity.
(p) (x) other than as expressly permitted under the terms of the related Confirmation, exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan or (y) in connection with any foreclosure or exercise of remedies relating to any Purchased Loan, take title to or otherwise obtain an ownership interest in any underlying Mortgaged Property, in each case, without Buyer’s prior written consent; provided, that nothing herein shall prohibit Seller from sending any notice of a Purchased Loan Default or Purchased Loan Event of Default to any Mortgagor.
(q) except as otherwise expressly permitted without the Seller’s consent under the terms of the applicable intercreditor agreement, co-lender agreement or participation agreement for the applicable Purchased Loan as in effect on the Purchase Date, or any such similar agreement or amendment thereto entered into subsequent to the applicable Purchase Date that has been approved by Buyer, or as otherwise expressly agreed by Buyer pursuant to the terms of the Confirmation and/or the Senior Interest Side Letter for the applicable Purchased Loan, Transfer or permit to be Transferred, in whole or in part, any Related Interest, Mezzanine Loan or Preferred Equity Interest held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Related Interest, Mezzanine Loan or Preferred Equity Interest held by any other Person, except to a Qualified Institutional Lender;
(r) other than as specified in the related Confirmation, consent to, or grant any waiver with respect to, any incurrence of additional debt by the Mortgagor or any mezzanine loan by any direct or indirect beneficial owner of the Mortgagor which is not expressly permitted under the related Purchased Loan Documents;
(s) following the Purchase Date with respect to the Watchtower A-Note Eligible Loan, transfer, sell or permit to be transferred or sold any interest in the Watchtower A-Note Eligible Loan, without Buyer’s prior written consent;
(t) without Buyer’s consent, cause any Purchased Loan to be serviced by any servicer other than the Initial Servicer or other servicer expressly approved in writing by Buyer on the related Purchase Date; or
(u) permit Manager to be terminated as Sponsor’s external manager pursuant to the Second Amended and Restated Management Agreement, dated as of October 23, 2014 (as the same may be further amended, restated, supplemented or otherwise modified, provided that such amendment, restatement, supplement or other modification does not terminate or replace Manager as Sponsor’s external manager), between Sponsor and Manager, unless any replacement external manager or switch to internal management shall have been approved by Buyer in writing, such approval not to be unreasonably withheld, conditioned or delayed.
(v) amend, modify or waive in any material respect or terminate any provision of any Servicing Agreement, without the consent of Buyer in its sole and absolute discretion;
(w) acquire or maintain any right or interest in any Purchased Asset Loan or any Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiix) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation Regulations T, U or X of the Board of Governors of the Federal Reserve System or otherwise for the purpose of acquiring or purchasing “Margin Stock” as such term is defined in Regulation U of the Board of Governors of the Federal Reserve System; and;
(xiiiy) directlytake any action, cause, allow, or through permit any of Seller, Sponsor or any Subsidiary of Sponsor that is also a direct or indirect parent of Seller to be required to register as an “investment company,” or a company “controlled by an investment company,” within the meaning of the Investment Company Act, or to violate any provisions of the Investment Company Act, including Section 18 thereof or any rules or regulations promulgated thereunder;
(z) directly or indirectly, use or permit Sponsor to use the proceeds of any Transaction, or lend, contribute or otherwise make available such proceeds to any Subsidiary, acquire joint venture partner or hold title other Person 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 real propertyPerson in violation of Anti-Corruption Laws; or
(aa) notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document, (i) Seller shall not enter into (or agree to enter into) any Division/Series Transaction and (ii) none of the provisions in this Agreement nor any other Transaction Document, shall be deemed to permit any Division/Series Transaction, except, in each case, for the establishment of any new Series Seller in connection with any Transaction in accordance with the provisions of Section 3(n) hereof; or (bb) fail to comply with Section 5 of the Letter Agreement.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the any Transaction hereunder is in effect, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, knowingly take any action that would directly or indirectly impair or adversely affect PurchaserXxxxx’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item Assets with any Person other than PurchaserBuyer;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) if the same would cause Seller to violate the covenants contained in Article 12;
(ve) enter into subject to Article 27, permit (through the giving of consent or a waiver, failure to object or otherwise) any transaction Mortgaged Property or Mortgagor, in each case, relating to any Purchased Asset, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt (in each case, excluding Permitted Encumbrances against the related Mortgaged Property and except to the extent that any such Liens or Indebtedness are otherwise created, incurred, assumed or permitted in accordance with the Purchased Asset Documents);
(f) consent or assent to any Significant Modification relating to any Purchased Asset or other agreement or instrument relating to any Purchased Asset other than in accordance with Article 27 and the Servicing Agreement and/or Servicer Letter (as applicable);
(g) permit the organizational documents or organizational structure of Seller to be amended in any material respect; provided, however that the foregoing shall not prohibit any modifications to Seller’s organizational documents which are administrative in nature (other than with respect to the special purpose entity provisions) or solely reflect new direct or indirect ownership so long as no Change of Control has occurred;
(h) engage in, seek or consent to any dissolution, winding up, Division, liquidation, consolidation, merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell sale of all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after from time to time and upon the repurchase thereof in accordance with of all applicable Purchased Assets of Seller then subject to Transactions under this Agreement), transfer of membership interests or the like;
(vii) permit suffer a Change of ControlControl that Xxxxx has not consented to;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xj) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xik) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property relating to any Purchased Asset that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless other than (x) in connection with the addition of such right other rights or interests as Collateral hereunder, or (y) a pari passu companion note or a pari passu participation interest in related to a Senior Interest that is a Purchased Asset hereunderwhich note or interest Seller holds and promptly transfers to an Affiliate or to a securitization transaction;
(xiil) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiim) directly, or through a Subsidiary, acquire or hold title to any real property;
(n) make any election or otherwise take any action that would cause Seller to be treated as an association taxable as a corporation for U.S. federal income tax purposes; or
(o) permit any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) to become, or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner, directly or indirectly, of 10% or more of the total voting power of all classes of Capital Stock of Guarantor entitled to vote generally in the election of the directors or the applicable equivalent unless, in each case, (x) Buyer has completed all “Know Your Customer” and Sanctions and Patriot Act diligence as to such “person” or “group”, as applicable, and (y) Seller certifies to Buyer that (i) Seller Parties have completed their own “Know Your Customer” and Sanctions and Patriot Act diligence as to such “person” or “group”, as applicable and its or their beneficial owners (attaching thereto the results of such diligence) and (ii) Seller has no Knowledge nor any reason to believe that such “person” or “group” or its or their beneficial owners have violated the representations and warranties contained in Article 9(hh) (Anti-Money Laundering and Economic Sanctions).
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any or security interest in the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets or the Seller’s interest in Underlying Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than Purchaser, Buyer or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Assets or the Seller’s interest in Underlying Assets, except as described in Section 6 of this Agreement (or as otherwise set forth in the related intercreditor agreement, participation agreement or similar agreement);
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than assets subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiie) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guaranty relating to the Purchased Assets or other material agreement or instrument relating to the Purchased Assets other than in accordance with Article 29Section 7(d);
(ixf) permit use any of the organizational documents Purchase Price for the Purchased Assets either directly or jurisdiction indirectly to acquire any security, as that term is defined in Regulation T of organization the Regulations of Seller the Board of Governors of the Federal Reserve System, or take any action that might cause any Transaction to be amended in violate any material respectregulation of the Federal Reserve Board;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets forfor any equity or ownership interest of Seller, or for a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereofto any equity or ownership interest of Seller, either directly or indirectly, whether in cash or property or in obligations of Seller;; provided, that the foregoing shall not restrict Seller from making distributions, from assets other than the Purchased Assets, required to avoid imposition of taxes in accordance with Seller’s status under the Code as a real estate investment trust (“REIT”) within the meaning of Section 856 through 860 of the Code, in the event Seller then qualifies as a REIT under the Code; or
(xih) acquire or maintain any right or interest in any file a UCC financing statement, with respect to a Purchased Asset or any Mortgaged Property that is senior toUnderlying Asset, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right an amendment or interest in termination statement with respect to a UCC financing statement with respect to a Purchased Asset hereunder;
(xii) use any part or Underlying Asset, except as approved by Buyer in each instance. All of the proceeds financial tests and covenants of any Transaction hereunder for any purpose which violates, or would Seller in this Agreement will be inconsistent with, measured based on the provisions consolidated position of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertySeller and its Subsidiaries.
Appears in 1 contract
Samples: Master Repurchase Agreement (American Mortgage Acceptance Co)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) modify in any material adverse respect any Servicing Agreements;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned Collateral or hereafter acquiredPurchased Items, other than the Liens and security interest granted by Seller pursuant to the Transaction DocumentsArticle 6 of this Agreement;
(iv) intentionally omitted;
(ve) enter into any transaction of merger or consolidation or amalgamation, that is likely to have a material adverse effect on the creditworthiness or financial condition of Seller, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification material amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other material agreement or instrument relating to the Purchased Assets other than in accordance with Article 2928;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xig) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder ;
(xiih) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiii) directly, or through a Subsidiary, acquire or hold title permit Seller’s EBITDA to Fixed Charge Ratio as of the last day of any fiscal quarter to be less than 1.20:1;
(j) permit Seller’s ratio of Total Indebtedness to Tangible Net Worth at any time to be greater than 10.00:1.00;
(k) permit Seller’s ratio of Total Non-Securitized Indebtedness to Tangible Net Worth at any time to be greater than 5.00:1.00; or
(l) enter into any Hedging Transaction with respect to any real propertyPurchased Asset with any entity that is not an Affiliated Hedging Counterparty or a Qualified Hedging Counterparty.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect adverse to the Buyer any Servicing Agreements to which it is a party, without the consent of Buyer in its sole discretion;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement, Permitted Encumbrances, and the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger Lien granted by Pledgor under the Pledge and Security Agreement or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the unless and until such Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement);; provided, however, to the extent any Lien is involuntarily created in or on any property of Seller and Seller had no Knowledge thereof on or prior to the date of creation of such Lien, Seller shall not be in default of this Article 10(d) so long as Seller cures same to the satisfaction of Buyer within five (5) Business Days after the earlier of (A) notice by Buyer to Seller thereof and (B) Seller’s Knowledge thereof.
(vie) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to, or permit the Primary Servicer or servicer to make, any Significant Modification other than relating to the Purchased Assets without the prior written consent of Buyer, which shall be granted or denied in accordance with Article 29Buyer’s sole discretion (such consent not to be unreasonably withheld, delayed or conditioned);
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectwithout the prior written consent of Buyer (such consent not to be unreasonably withheld, delayed or conditioned);
(xh) acquire or maintain any right or interest in any Purchased Asset or Underlying Mortgaged Property that is senior to, junior to or pari passu with the rights and interests of Buyer therein under this Agreement and the other Transaction Documents unless such right or interest becomes a Purchased Asset hereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Buyer in writing;
(i) use any part of the proceeds of any Transaction hereunder for any purpose which violates the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System;
(j) incur any Indebtedness except as provided hereunder or otherwise cease to be a Single-Purpose Entity;
(k) amend or otherwise modify the Underwriting Guidelines or originate mortgage loans in a manner inconsistent with the Underwriting Guidelines. Notwithstanding the preceding sentence, in the event that Seller makes any amendment or modification to the Underwriting Guidelines, Seller shall immediately notify Buyer of such change and shall promptly deliver to Buyer a complete copy of the amended or modified Underwriting Guidelines;
(l) take any action, cause, allow, or permit any of the Seller, Pledgor or Guarantor to be required to register as an “investment company” within the meaning of the Investment Company Act;
(m) after the occurrence and during the continuance of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of SellerSeller provided that. Seller may distribute the minimum amount of cash required to be distributed so that Guarantor /including its qualifying subsidiaries) can maintain its status as a “real estate investment trust” or qualifying subsidiary. as applicable) under Sections 856 through 860 of the Code and such distributions are actually used to maintain Guarantor’s status as a “real estate investment trust” under Sections 856 through 860 of the Code;
(xin) acquire or maintain make any right or interest in future advances under any Purchased Asset or to any Mortgaged Property underlying obligor that is senior to, or pari passu with, are not permitted by the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a related Purchased Asset hereunderDocuments;
(xiio) use seek its dissolution, liquidation or winding up, in whole or in part; or
(p) permit, at any part time, a breach of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyConcentration Limit.
Appears in 1 contract
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
Buyer: (ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title or interest to any of the Purchased Asset Loans subject to Transactions, or claim any credit on, make any deduction from, or dispute the enforceability of, the payment of any amounts payable in respect of the Repurchase Obligations (other Purchased Item;
than amounts required to be paid, deducted or withheld in accordance with any applicable law or regulation of a Governmental Authority as provided herein) or assert any claim against Buyer by reason of the payment of any taxes levied or assessed upon any part of the Collateral; (iib) at except as otherwise permitted under this Agreement or any time a other Transaction is outstanding with respect to any Purchased AssetDocument, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Mortgage Loans (or any Purchased Asset or other Purchased Item of them) while subject to Transactions to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Mortgage Loans (or any Purchased Asset or other Purchased Item of them) while subject to Transactions with any Person other than Purchaser;
Buyer, or (iiiA) create, incur, incur or assume or suffer to exist guarantee any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquiredindebtedness, other than the Liens and Repurchase Obligations or (B) issue any additional class of securities, other than membership interests in Seller; (c)
(A) permit the validity or effectiveness of this Agreement or any grant of security hereunder to be impaired, or permit the lien of this Agreement to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to this Agreement, except as may be expressly permitted hereby, (B) permit any lien, charge, adverse claim, security interest, mortgage or other encumbrance (other than Permitted Liens) to be created on or extend to or otherwise arise upon or burden the Collateral or any part thereof, any interest therein or the proceeds thereof, except as may be expressly permitted hereby or (C) take any action that would permit the lien of this Agreement not to constitute a valid first priority security interest granted in the Collateral, except as may be expressly permitted hereby; (d) cause any Mortgage Loan subject to a Transaction to be serviced by any servicer other than a Servicer expressly approved in writing by Buyer, or amend any Servicing Agreement, except with the prior written consent of Buyer or, solely with respect to immaterial amendments, prior written notice to Buyer; (e) send a payment redirection letter to the Mortgagor of any Mortgage Loan subject to a Transaction, or otherwise instruct any Mortgagor to make any payment due on such 52 739191471 20664933 Mortgage Loan to any account, other than a restricted or other similar account established in connection with a Servicing Agreement; (f) sponsor or maintain any Plans or have an obligation to contribute to or have any direct liability to any Plan or Multiemployer Plan; or permit Seller’s Subsidiaries, Guarantor, Guarantor’s Subsidiaries, or any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or Multiemployer Plan that could possibly result in material liability for Seller or Guarantor; (g) become an entity deemed to hold Plan Assets or become subject to any applicable law that regulates investments of, and fiduciary obligations with respect to, governmental plans, that is similar to the provisions of Section 406 of ERISA or Section 4975 of the Code and that would be violated by the transactions contemplated by this Agreement or any other Transaction Document; (h) dissolve or liquidate in whole or in part, except as permitted hereunder; (i) make or incur any capital expenditures, except as reasonably required to perform its functions and operate its business in accordance with the terms of this Agreement or any other Transaction Document; (j) in the case of the Seller, become liable in any way, whether directly or by assignment or as a guarantor or other surety, for the obligations of the lessee under any lease, hire any employees (other than its managers to the extent they would be deemed to be employees) or, pay any distribution to its equity holders except for amounts released to the Seller (or its designee) in accordance with Section 5(c) and Mortgage Loans repurchased by the Seller from the Buyer; (k) in the case of the Seller, maintain any bank accounts other than pursuant to the Transaction Documents;
; (ivl) intentionally omitted;
engage in any activity that would cause the Seller to be subject to U.S. federal, state, local or foreign income, franchises or similar tax in excess of $1,000 in any year; (vm) enter in the case of Seller, consolidate or merge with or into any transaction of merger other Person or consolidation transfer or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell convey all or substantially all of its assets to any Person; (except in connection with n) enter into any agreements, other than the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business Asset Documents, after the repurchase thereof in accordance with this Agreement);
date hereof unless such agreements contain customary “non-petition” or “limited recourse” provisions; (vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ixo) permit the organizational documents or jurisdiction formation of organization any subsidiaries without prior consent of Seller to be amended the Buyer; (p) engage in any material respect;
business or activity other than (xi) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in performing its obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under pursuant to this Agreement and any supplements thereto and the other Transaction Documents, (ii) entering into the Transaction Documents unless to which it is a party, (iii) acquiring, owning, holding and transferring Purchased Loans and the other Collateral in connection with this Agreement and (iv) originating the Mortgage Loans, and such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose other activities which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.are
Appears in 1 contract
Samples: Master Repurchase Agreement (Newtek Business Services Corp.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until the Agreement and this Agreement or the Transaction hereunder is Annex I are no longer in effectforce with respect to any Transaction, a Material Adverse Change shall not have occurred and Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer Agent:
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, 11.1 take any action that which would directly or indirectly impair or adversely affect Purchaser’s the applicable Buyer's title to any the Purchased Asset or other Purchased ItemAssets;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, 11.2 transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than Purchaserthe Buyer Parties, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer so long as such Purchased Assets are subject to the Agreement;
(iii) 11.3 create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Annex I, except as described in Section 6 of this Annex I;
(iv) intentionally omitted11.4 modify or terminate any of the organizational documents of Seller;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) 11.5 consent or assent to any Significant Modification amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Assets other than in accordance with Article 29Section 7.6 or a Permitted Purchased Loan Modification; provided, that the Buyer Agent agrees to not unreasonably withhold, delay or condition a written request from Seller to consent to an amendment to a Purchased Loan, to use its best efforts to respond to any such written request within five (5) Business Days and to respond to any such written request in any event within seven (7) Business Days;
(ix) 11.6 admit any additional members in Seller, or permit the organizational documents sole member in Seller to assign or jurisdiction transfer all or any portion of organization its member interest in Seller;
11.7 at any time during which an Event of Default on the part of Seller has occurred and is continuing, vote or take any action to be amended in permit any material respect;
(x) rights afforded to a holder of the Purchased Securities under the related Securitization Documents; or 11.8 after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (Anthracite Capital Inc)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the any Transaction hereunder is in effect, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item Assets with any Person other than PurchaserBuyer;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness if the same would cause Seller to violate the covenants contained in Article 12;
(ve) subject to Article 27, permit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property or Mortgagor, in each case, relating to any Purchased Asset, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt (in each case, excluding Permitted Encumbrances against the related Mortgaged Property and except to the extent that any such Liens or Indebtedness are otherwise created, incurred, assumed or permitted in accordance with the Purchased Asset Documents);
(f) consent or assent to any Significant Modification relating to any Purchased Asset or other agreement or instrument relating to any Purchased Asset other than in accordance with Article 27 and the Servicing Agreement or Servicer Letter (as applicable);
(g) permit the organizational documents or organizational structure of Seller to be amended in any material respect;
(h) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vii) permit suffer a Change of ControlControl of Seller or enter into (or agree to enter into) any Division/Series Transaction;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xj) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of SellerSeller or Guarantor, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of SellerSeller or Guarantor; provided that, Seller and Guarantor may distribute the minimum amount of cash required to be distributed so that Guarantor can maintain its status as a “real estate investment trust” under Sections 856 through 860 of the Code and avoid the payment of any income or excise taxes imposed under Section 857(b)(1), 857 (b)(3) or 4981 of the Code;
(xik) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property relating to any Purchased Asset that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiil) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiim) directly, or through a Subsidiary, acquire or hold title to any real property; or
(n) make any election or otherwise take any action that would cause Seller to be treated as an association taxable as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Master Repurchase Agreement (Seven Hills Realty Trust)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the a Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(i) subject Subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this AgreementAsset, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
; (ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
; (iii) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
; (iv) intentionally omitted;
create, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) to the extent the same would cause Seller to violate the covenants contained in this Agreement or Guarantor to violate the financial covenants contained in the Guaranty; (v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the Transactions or the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
; (vi) permit a Change of Control;
; (vii) intentionally omitted;
permit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property, any Capital Stock in any Mortgagor securing any Mezzanine Loan, Mortgagor or Mezzanine Borrower, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, senior or pari passu mortgage debt, junior mortgage debt or mezzanine debt (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against any related Mortgaged Property); (viii) with respect to any Purchased Asset, consent or assent to any Significant Material Modification of any related Purchased Asset Document other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement 29 and the other Transaction Documents unless such right Servicing Agreement or interest in a Purchased Asset hereunder;
Servicer Letter (xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve Systemas applicable); and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.48
Appears in 1 contract
Samples: Master Repurchase Agreement
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiie) consent or assent to any a Significant Modification relating to the Purchased Assets or other than in accordance with Article 29agreement or instrument relating to the Purchased Assets;
(ixf) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respectreserved;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; provided that, so long as no monetary Event of Default referenced in Section 14(a)(i), (ii), (iv) or (v) of this Agreement in an amount equal to or greater than $500,000 shall have occurred and be continuing, Seller may distribute the minimum amount of cash required to be distributed so that Xxxxxx Mortgage Trust, Inc. can maintain its status as a “real estate investment trust” under Sections 856 through 860 of the Code and avoid the payment of any income or excise taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 or the Code;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer, which consent shall not, prior to the occurrence and during the continuance of a Default or an Event of Default, be unreasonably withheld, conditioned or delayed, other than with respect to special purpose entity provisions, for which such consent shall be at Buyer’s sole discretion;
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Buyer in writing;
(xiio) knowingly, directly or indirectly use the proceeds from any part Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer);
(p) knowingly, directly or indirectly use the proceeds from any Transaction or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any activity that would violate applicable anti-corruption laws, rules, or regulations;
(q) permit, at any time, a breach of the proceeds Concentration Limit due to an early repurchase pursuant to Section 3(i) above (provided, however, in the event of any Transaction hereunder for any purpose which violatessuch a breach, no later than two (2) Business Days after receipt of notice of such breach from Buyer or Seller knowledge thereof, Seller may cure such breach by: (i) delivering to Buyer cash, (ii) repurchasing such Purchased Assets giving rise to such breach of the Concentration Limit at their Repurchase Prices, or would be inconsistent with(iii) choosing any combination of the foregoing, such that, after giving effect to such transfers, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve SystemConcentration Limit is no longer breached) ; andor
(xiiir) directly, or through cause any Purchased Asset to be serviced by any servicer other than a Subsidiary, acquire or hold title to any real propertyservicer expressly approved in writing by Buyer.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 10(b)(xxi) unless it shall have provided Buyer thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any Purchased Asset, except for any Liens created in favor of Buyer under this Agreement;
(e) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivf) intentionally omittedmodify in any material respect or terminate any of the organizational documents of Seller;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Purchased Asset Modification to any Purchased Asset (or other agreement or instrument relating to any Purchased Asset) other than in accordance with Article 29this Agreement;
(ixh) admit any additional members in Seller, or permit the organizational documents or jurisdiction of organization respective sole member of Seller to be amended assign or transfer all or any portion of its membership interests in any material respectSeller;
(xi) take any action, file any tax return, or make any election inconsistent with the treatment of Seller, for purposes of federal income taxes, as a disregarded entity that is not separate from its member, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for federal income tax purposes;
(j) after the occurrence and during the continuance continuation of an any Default or any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;; or
(xik) acquire send a Redirection Letter, instruction letter or maintain otherwise instruct any right Mortgagor, the Servicer, borrower or interest in any other obligor, as applicable, to make any payment due on such Purchased Asset or to any Mortgaged Property that is senior to, or pari passu with, account other than the rights and interests of Purchaser therein under this Agreement Cash Management Account and the other Transaction Documents unless such right or interest General Receipts Account (as defined in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyServicing Agreement).
Appears in 1 contract
Samples: Master Repurchase Agreement (Ares Commercial Real Estate Corp)
Negative Covenants of Seller. On Seller covenants and as agrees that, from the date of this Agreement and until the Closing or the date, if any, on which this Agreement is earlier terminated pursuant to Section 9.1 hereof unless Purchaser otherwise consents in writing Seller shall cause each of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionAcquired Companies to not:
(i) subject make any loans, enter into any non-arm's length transaction with any Insider, (ii) make or grant any increase in any Acquired Company's employee's, officer's or consultant's compensation outside of the Ordinary Course of Business, or (iii) adopt or modify any target performance goals which would have the effect of increasing compensation specified in clause (ii) above;
(b) enter into, modify, amend or terminate any (i) employment or independent contractor agreement providing for the payment of severance or other amounts upon early termination, expiration, or Change of Control; (ii) any other contract, agreement or transaction, other than in the Ordinary Course of Business and at arm's length, with any unaffiliated Person or any Insider or waive, release or assign any material rights or claims thereunder; or (iii) any Benefit Plan (except as required to Seller’s right to repurchase any Purchased Asset comply with applicable laws and regulations or pursuant to Section 7.11);
(c) cause any properties, assets, rights or interests related primarily to the terms Acquired Companies prior to the date hereof to become primarily used by or primarily related to Seller or any Subsidiary of this AgreementSeller (excluding the Acquired Companies);
(d) amend the certificates or articles of incorporation or by-laws (or other comparable corporate charter documents) of any of the Acquired Companies or take any action with respect to any such amendment or any reorganization, liquidation or dissolution of any such corporation;
(e) authorize, issue, sell or otherwise dispose of any shares of Capital Stock of, securities convertible into shares of Capital Stock of, ownership interests in or any option with respect to, any Acquired Company, or modify or amend any right of any holder of outstanding shares of Capital Stock of, ownership interest in or option with respect to any Acquired Company;
(f) directly or indirectly redeem, purchase or otherwise acquire any Capital Stock of, ownership interest in or any option with respect to any Acquired Company;
(g) acquire, lease or dispose of any tangible assets or properties of any Acquired Company or the Business other than such amounts that in the aggregate do not exceed $50,000;
(h) violate, breach or default under or take or fail to take any action that (with or without notice or lapse of time or both) would directly constitute a violation or indirectly impair breach of, or adversely affect Purchaser’s title default under, any term or provision of any license held or used by any Acquired Company or any contract to which any Purchased Asset Acquired Company is a party or other Purchased Itemby which any of their respective assets and properties is bound;
(i) (i) incur indebtedness of more than $20,000 or (ii) at any time voluntarily purchase, cancel, prepay or otherwise provide for a Transaction is outstanding complete or partial discharge in advance of a scheduled payment date with respect to, or waive any right of an Acquired Company under, any indebtedness of or owing to any Purchased AssetAcquired Company (in either case other than indebtedness of any Acquired Company owing to any Acquired Company);
(j) enter into change of control, transferseverance agreements or similar arrangements;
(k) split, assigncombine or reclassify any of shares of Capital Stock of any Acquired Company or issue or authorize the issuance of any other securities in respect of, convey, grant, bargain, sell, set over, deliver or otherwise dispose in lieu of, or pledge or hypothecate, directly or indirectly, in substitution for such shares of Capital Stock of any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than PurchaserAcquired Company;
(iiil) createacquire or agree to acquire by merging or consolidating with, incur, assume or suffer to exist by purchasing any Lien equity interest in or on a portion of the assets of, or by any other manner, any business or any Person;
(m) make any payments outside of its propertythe Ordinary Course of Business;
(n) except as required by GAAP, assetsmake any change in accounting methods, revenueprinciples or practices;
(o) settle any pending or threatened claim, the Purchased Assets, the other Collateral, whether now owned action or hereafter acquiredproceeding, other than the Liens insured matters, brought by any Person (other than full and security interest granted by Seller pursuant to the Transaction Documentsunconditional settlements which do not admit liability and only require payments of less than $17,500);
(iv) intentionally omitted;
(vp) enter into any transaction of merger agreement to lease real property; or
(q) agree in writing or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer otherwise take any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets actions described in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertySection 5.2.
Appears in 1 contract
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to except for any Purchased AssetLoan which has been repurchased by Seller in accordance with this Agreement, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecate, directly or indirectlyindirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer at least thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on Seller’s interest in any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any liens created in favor of Buyer under this Agreement or hereafter acquired, the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omitted;
(v) enter into modify or terminate the Master Seller LLC Agreement or any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course organizational documents of Seller’s business after , provided that Buyer shall not unreasonably withhold or delay its consent to any proposed modification to the repurchase thereof in accordance with this AgreementMaster Seller LLC Agreement (excluding any modification to the SPE provisions set forth therein);
(vif) permit a Change of Control;
(vii) intentionally omitted;
(viii) enter into, consent or assent to or take any Significant Modification other than in accordance with Article 29Material Action, subject to Section 7(e) hereof;
(ixg) transfer or permit to be transferred (excluding transfers of publicly traded shares of any indirect equity owner in Seller on a nationally or internationally recognized stock exchange) any direct or indirect ownership interests in Seller, or take any action or permit any action to be taken, if any such transfers and/or actions, individually or in the organizational documents aggregate, would result in a Change of Control or jurisdiction of organization of would cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Seller to an amount which equals or exceeds ten percent (10%), unless such transferee shall be amended in any material respecta Qualified Transferee;
(xh) after take any action, file any Tax return, or make any election inconsistent with the occurrence treatment of Seller, for purposes of U.S. federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes;
(i) during the continuance continuation of an any Event of DefaultDefault which has occurred, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of SellerSeller (unless the same is necessary for Parent to maintain its status as a REIT under the Code);
(xij) acquire send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) with respect to, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right any Plan or interest permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan, in each case, which could reasonably be likely to have a Purchased Asset hereunderMaterial Adverse Effect;
(xiil) use engage in any part transaction that would cause the assets of Seller to be deemed to constitute “plan assets” for purposes of ERISA;
(m) make any future advances under any Purchased Loan to any underlying obligor that are not (i) protective advances or (ii) future advances which are (x) permitted or contemplated by the related Purchased Loan Documents and (y) in accordance with the budgets and capital expenditure plans approved under the Purchased Loan Documents;
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) or otherwise cease to be a Single-Purpose Entity.
(p) other than as set forth in a separate written agreement between Seller and Buyer, exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan;
(q) except as otherwise expressly permitted without Seller’s consent in any intercreditor agreement, co-lender agreement or participation agreement for the applicable Purchased Loan as in effect on the Purchase Date, or any such similar agreement or amendment thereto entered into subsequent to the applicable Purchase Date that has been approved by Buyer, or as otherwise expressly agreed by Buyer pursuant to the terms of the proceeds Confirmation and/or the Senior Interest Side Letter for the applicable Purchased Loan, Transfer or permit to be Transferred, in whole or in part, any Related Interest with respect to any Purchased Loan held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Transaction hereunder Related Interest with respect to any Purchased Loan held by any other Person, except to a Qualified Institutional Lender;
(r) consent to, or grant any waiver with respect to, any incurrence of additional debt by the Mortgagor or any mezzanine loan by any direct or indirect beneficial owner of the Mortgagor, except for any purpose which violatesadditional debt or mezzanine loan expressly permitted under the Purchased Loan Documents without Seller’s consent;
(s) knowingly: (i) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or would services, to or for the benefit of a Prohibited Person; or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order 13224 issued on September 24, 2001. Seller further covenants and agrees to deliver (from time to time) to Buyer any such certification or other evidence as may be inconsistent withrequested by Buyer in its sole and absolute discretion, confirming that neither of Seller nor Guarantor has, to the knowledge of Seller, engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person;
(t) cause any Purchased Loan to be serviced by any servicer other than a Servicer, unless expressly approved in writing by Buyer pursuant to Section 28 hereof;
(u) permit the internalization of management of Parent or Guarantor without Buyer’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed; or
(v) notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document, (i) Seller shall not enter into (or agree to enter into) any Division/Series Transaction and (ii) none of the provisions in this Agreement nor any other Transaction Document, shall be deemed to permit any Division/Series Transaction, except for the establishment of any new Series Seller in connection with any Transaction in accordance with the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiiiSection 3(n) directly, or through a Subsidiary, acquire or hold title to any real propertyhereof.
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony Credit Real Estate, Inc.)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Asset without the prior written consent of merger Buyer, such consent not to be unreasonably withheld, conditioned or consolidation or amalgamationdelayed; provided, however, if Buyer has not consented to, rejected, or liquidate, wind up requested additional information or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except time in connection with the sale or securitization any such Significant Modification within ten (10) Business Days after written notice of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)same, then such Significant Modification shall be deemed approved by Buyer;
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller. Notwithstanding the foregoing, Guarantor shall be permitted to make distributions to maintain Guarantor’s status as a real estate investment trust pursuant to the Code and comparable state rules and regulations, without duplication of any permitted distributions under the Guaranty;
(xih) except as set forth on Exhibit IX, sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer in its sole discretion;
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use the proceeds from any part Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer);
(p) knowingly, directly or indirectly use the proceeds from any Transaction or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any activity that would violate applicable anti-corruption laws, rules, or regulations;
(q) permit, at any time, a breach of the proceeds Concentration Limit due to an early repurchase pursuant to Section 3(i) above (provided, however, in the event of any Transaction hereunder for any purpose which violatessuch a breach, no later than two (2) Business Days after receipt of notice of such breach from Buyer or Seller knowledge thereof, Seller may cure such breach by: (i) delivering to Buyer cash, (ii) repurchasing such Purchased Assets giving rise to such breach of the Concentration Limit at their Repurchase Prices, or would be inconsistent with(iii) choosing any combination of the foregoing, such that, after giving effect to such transfers, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve SystemConcentration Limit is no longer breached) ; andor
(xiiir) directly, or through cause any Purchased Asset to be serviced by any servicer other than a Subsidiary, acquire or hold title to any real propertyservicer expressly approved in writing by Buyer.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Resource Capital Corp.)
Negative Covenants of Seller. On Seller covenants and agrees that, from the date of this Agreement and until the Closing or the date, if any, on which this Agreement is earlier terminated pursuant to Section 9.1 hereof ((i) unless Purchaser otherwise consents in writing (which consent shall not be unreasonably withheld or delayed), (ii) unless Seller or an Acquired Company takes such action and causes any related obligations and liabilities to be fully and unconditionally discharged without any cost or expense to any Acquired Company associated therewith following the Closing Date, or (iii) except as expressly contemplated by this Agreement) Seller shall cause each of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionAcquired Companies to not:
(i) subject to Seller’s right to repurchase make any Purchased Asset pursuant to loans, enter into any non-arm's length transaction with any Insider, (ii) make or grant any increase in any Acquired Company's employee's, officer's or consultant's compensation outside of the terms Ordinary Course of Business, (iii) adopt or amend any employee benefit plan, incentive arrangement or other benefit covering any of the employees or consultants of the Acquired Companies outside of the Ordinary Course of Business, or (iv) adopt or modify any target performance goals which would have the effect of increasing compensation specified in clause (ii) or (iii) above;
(b) except as specifically contemplated by this Agreement, enter into, modify, amend or terminate any contract, agreement or transaction, other than in the Ordinary Course of Business and at arm's length, with any unaffiliated Person or any Insider or waive, release or assign any material rights or claims thereunder;
(c) cause any properties, assets, rights or interests related primarily to the Acquired Companies prior to the date hereof to become primarily used by or primarily related to Seller or any Subsidiary of Seller (excluding the Acquired Companies);
(d) amend the certificates or articles of incorporation or by-laws (or other comparable corporate charter documents) of any of the Acquired Companies or take any action with respect to any such amendment or any reorganization, liquidation or dissolution of any such corporation;
(e) authorize, issue, sell or otherwise dispose of any shares of Capital Stock of, securities convertible into shares of Capital Stock of, ownership interests in or any option with respect to, any Acquired Company, or modify or amend any right of any holder of outstanding shares of Capital Stock of, ownership interest in or option with respect to any Acquired Company;
(f) directly or indirectly redeem, purchase or otherwise acquire any Capital Stock of, ownership interest in or any option with respect to any Acquired Company;
(g) acquire, lease or dispose of any tangible assets or properties of any Acquired Company or the Business other than such amounts that in the aggregate do not exceed $50,000;
(h) violate, breach or default under in any material respect, or take or fail to take any action that (with or without notice or lapse of time or both) would directly constitute a material violation or indirectly impair breach of, or adversely affect Purchaser’s title default under, any term or provision of any material license held or used by any Acquired Company or any material contract to which any Purchased Asset Acquired Company is a party or other Purchased Itemby which any of their respective assets and properties is bound;
(i) (i) incur indebtedness of more than $20,000 or (ii) at any time voluntarily purchase, cancel, prepay or otherwise provide for a Transaction is outstanding complete or partial discharge in advance of a scheduled payment date with respect to, or waive any right of an Acquired Company under, any indebtedness of or owing to any Purchased AssetAcquired Company (in either case other than indebtedness of any Acquired Company owing to any Acquired Company);
(j) enter into change of control, transferseverance agreements or similar arrangements;
(k) split, assigncombine or reclassify any of shares of Capital Stock of any Acquired Company or issue or authorize the issuance of any other securities in respect of, convey, grant, bargain, sell, set over, deliver or otherwise dispose in lieu of, or pledge or hypothecate, directly or indirectly, in substitution for such shares of Capital Stock of any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than PurchaserAcquired Company;
(iiil) createacquire or agree to acquire by merging or consolidating with, incur, assume or suffer to exist by purchasing any Lien equity interest in or on a portion of the assets of, or by any of its propertyother manner, assets, revenue, the Purchased Assets, the other Collateral, whether now owned any business or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documentsany Person;
(ivm) intentionally omittedmake any payments outside of the Ordinary Course of Business;
(vn) except as required by GAAP, make any material change in accounting methods, principles or practices;
(o) settle any pending or threatened claim, action or proceeding brought by any Person (other than full and unconditional settlements which do not admit liability and only require payments of less than $5,000);
(p) enter into any transaction of merger agreement to lease real property; or
(q) agree in writing or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer otherwise take any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets actions described in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertySection 5.2.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of PurchaserAdministrative Agent, which may be granted or denied at Purchaser’s sole and absolute discretionon behalf of Buyers:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserAdministrative Agent’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, including, without limitation, any effective transfer or other disposition as a result of a Division of Seller, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserAdministrative Agent, on behalf of Buyers, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserAdministrative Agent, on behalf of Xxxxxx, except where the Purchased Assets in question are simultaneously repurchased from Administrative Agent, on behalf of Buyers;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, charge, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Administrative Agent, on behalf of Buyers;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Asset by the Seller or Guarantor, without the prior written consent of merger or consolidation or amalgamationAdministrative Agent, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets which consent shall be in the ordinary course sole discretion of Seller’s business after the repurchase thereof in accordance with this Agreement)Administrative Agent;
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Administrative Agent or any Buyer, of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Requirement of Law;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation, Division or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Administrative Agent, on behalf of Xxxxxx, in its sole discretion;
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Administrative Agent, on behalf of Buyers, therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) directly or indirectly use the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Administrative Agent or any Buyer);
(p) directly or indirectly use the proceeds from any Transaction or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any activity that would violate applicable anti-corruption laws, rules, or regulations; or
(q) use any part of escrow or reserve held pursuant to the proceeds of any Transaction hereunder Purchased Asset Documents in its possession or control for any purpose which violates, or would be inconsistent with, reason other than uses permitted under the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyPurchased Asset Documents.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)
Negative Covenants of Seller. On From the Execution Date until the ------------------ earlier of the Effective Time or the termination of this Agreement, unless the prior written consent of the Parent shall have been obtained, and except as set forth in Schedule 7.2 or except as otherwise expressly contemplated herein, the ------------ Seller covenants and agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of the following:
(a) amend the certificate of incorporation, bylaws or other governing instruments of any Seller Entity; or
(b) incur any obligation for borrowed money (other than indebtedness of a Seller Entity to another Seller Entity) in excess of an aggregate of $50,000 (for the Seller Entities on a consolidated basis), or impose, or suffer the imposition, on any asset or property of any Seller Entity of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof and at all times while this Agreement or that are disclosed in the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:Disclosure Schedules); or
(ic) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreementrepurchase, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Assetredeem, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, acquire or pledge or hypothecateexchange (other than exchanges in the ordinary course under any Plans), directly or indirectly, any interest in any Purchased Asset Shares or other Purchased Item to any Person other than PurchaserEquity Rights, or engage in repurchase transactions declare or similar transactions with respect to pay any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, dividend or make any other distribution in respect thereofof any Shares or Equity Rights; or
(d) issue, sell, pledge, encumber, authorize the issuance of, enter into any contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional Shares or Equity Rights; or
(e) adjust, split, combine or reclassify any capital stock of any Seller Entity or issue or authorize the issuance of any other securities in respect of or in substitution for Shares or Equity Rights, or sell, lease, mortgage or otherwise dispose of or otherwise encumber (i) any Shares or Equity Rights (unless any such shares of stock are sold or otherwise transferred to another Seller Entity) or (ii) any assets or properties having a book value in excess of $50,000 in the aggregate other than in the ordinary course of business for reasonable and adequate consideration; or
(f) except for purchases of U.S. Treasury securities or U.S. Government agency securities, which in either case have maturities of one year or less, purchase any securities or make any material investment, either directly by purchase of stock or indirectlysecurities, whether contributions to capital, asset transfers, or purchase of any assets, in cash any Person other than a wholly owned Seller Subsidiary, or property otherwise acquire direct or in obligations of Seller;indirect control over any Person; or
(xig) acquire grant any increase in compensation or benefits to the employees or officers of any Seller Entity, except as required by applicable Law; pay any severance or termination pay or any bonus other than pursuant to written policies or written contracts in effect
(h) enter into or amend any employment contract between any Seller Entity and any Person (unless such amendment is required by applicable Law) that the Seller Entity does not have the unconditional right to terminate without liability, at any time on or after the Effective Time; or
(i) adopt any new Plan of any Seller Entity or terminate or withdraw from, or make any material change in or to, any existing Plans of any Seller Entity other than any such change that is required by applicable Law or that, in the opinion of counsel, is necessary or advisable to maintain the tax qualified status of any right such Plan, or interest make any distributions from such Plans, except as required by applicable Law, the terms of such Plans or consistent with past practice; or
(j) make any significant change in any Purchased Asset Tax or any Mortgaged Property that is senior toaccounting methods or systems of internal accounting controls, except as may be appropriate to conform to changes in Tax Laws or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right regulatory accounting requirements or interest in a Purchased Asset hereunder;GAAP; or
(xiik) use commence any part Litigation other than in the ordinary course of the proceeds business in accordance with past practice, settle any Litigation involving any liability of any Transaction hereunder Seller Entity for material money damages or restrictions upon the operations of any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve SystemSeller Entity; andor
(xiiil) directlyenter into, modify, amend or through a Subsidiaryterminate any Material Seller Contract or waive, acquire release, compromise or hold title to assign any real propertymaterial rights or claims.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect Purchaser’s Buyer's title to any the Purchased Asset Securities or other the Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Securities or the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Securities or Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) with respect to any Purchased Securities purchased by Buyer where the Related Securities are owned by the Seller, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of or pledge or hypothecate, directly or indirectly, any interest in the Related Securities (including, without limitation, any securities which constitute the "controlling class" entitling the holder thereof to control the selection of the special servicer for the mortgage loans underlying such Purchased Securities); provided, however, that this subsection (c) shall not apply or be operative as to any Purchased Securities as to which Seller has delivered an agreement reasonably satisfactory to Buyer irrevocably conveying, transferring and pledging to Buyer the right to control the selection of the special servicer for the related mortgage loans;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Securities or the Purchased Loans, except as described in Paragraph 6 of this Agreement;
(e) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsParagraph 6 of this Agreement;
(ivf) intentionally omittedown any Supplemental Equity Collateral or, to the extent under its control, modify in any material respect or terminate any of the organizational documents of Seller or Sponsor;
(vg) enter into consent or assent to any transaction of merger amendment or consolidation or amalgamationsupplement to, or liquidatetermination of, wind up any Securitization Document, any note, loan agreement, mortgage or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of guaranty relating to the Purchased Assets in Loans or other material agreement or instrument relating to the ordinary course of Seller’s business after Portfolio Securities or the repurchase thereof in accordance with this Agreement)Purchased Loans other than Permitted Purchased Loan Modifications;
(vih) admit any additional members in Seller, or permit the sole member of Seller to assign or transfer all or any portion of its membership interests in Seller in a manner which would result in a Change of Control;
(viii) intentionally omitted;at any time after an Event of Default has occurred and is continuing, vote or take any action to exercise any rights afforded to a holder of the Portfolio Securities under the related Securitization Documents; or
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xj) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Negative Covenants of Seller. On and as During the term of the date hereof and at all times while this Agreement or the and so long as any Transaction hereunder is in effecteffect hereunder, Seller shall not without the prior written consent of PurchaserBuyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which may be granted or denied at Purchaser’s sole and absolute discretion:is a party to this Agreement as of the applicable date):
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any of the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, encumber or hypothecatehypothecate (any of the foregoing, directly or indirectly, a “Transfer”) any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) change its name or its jurisdiction of organization from the jurisdiction referred to in Section 9(b)(xxi) unless it shall have provided Buyer at least thirty (30) days’ prior written notice of such change;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Loans or the other Collateral, whether now owned except for any liens created in favor of Buyer under this Agreement or hereafter acquired, the other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ive) intentionally omitted;modify or terminate the Master Seller LLC Agreement or any of the organizational documents of Seller; Master Repurchase Agreement Resource Capital 45
(vf) enter into any transaction of merger or consolidation or amalgamationinto, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29respect to any Purchased Loan;
(ixg) transfer or permit the organizational documents or jurisdiction of organization of Seller to be amended transferred any direct or indirect ownership interests in Seller, or take any material respectaction or permit any action to be taken, if any such transfers and/or actions, individually or in the aggregate, would result in a Change of Control.
(h) take any action, file any Tax return, or make any election inconsistent with the treatment of Seller, for purposes of U.S. federal, state and local income taxes, as a disregarded entity, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes;
(xi) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xij) acquire send a payment redirection letter to the Mortgagor of any Purchased Loan, or otherwise instruct any Mortgagor, to make any payment due on a Purchased Loan to any account, other than the Applicable Servicer Account or Cash Management Account;
(k) sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan
(l) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the rights and interests Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of Purchaser therein ERISA, Section 4975 of the Code or substantially similar provisions under this Agreement and the any other Transaction Documents unless such right federal, state or interest in a Purchased Asset hereunderlocal laws, rules or regulations;
(xiim) use make any part future advances under any Purchased Loan to any underlying obligor that are not expressly required by the related Purchased Loan Documents;
(n) seek its dissolution, liquidation or winding up, in whole or in part;
(o) incur any Indebtedness except as provided in Section 12(i) or otherwise cease to be a Single-Purpose Entity.
(p) exercise any remedies under the Purchased Loan Documents for any Purchased Loan as to which a Purchased Loan Event of Default has occurred including, without limitation, the commencement or prosecution of any foreclosure proceeding, the exercise of any power of sale, the taking of a deed-in-lieu of foreclosure or other realization upon the security for any Purchased Loan or making any claim against a guarantor; provided, that, notwithstanding the Master Repurchase Agreement Resource Capital 46 foregoing, Seller may send default and reservation of rights notices to the Mortgagor and/or any guarantor or obligor for any Purchased Loan without Buyer’s consent so long as Seller does not exercise any additional remedies under the Purchased Loan Documents in connection therewith;
(q) Except as otherwise expressly permitted in any intercreditor agreement, co-lender agreement or participation agreement for the applicable Purchased Loan as in effect on the Purchase Date, or any such similar agreement or amendment thereto entered into subsequent to the applicable Purchase Date that has been approved by Buyer, or as otherwise expressly agreed by Buyer pursuant to the terms of the proceeds Confirmation and/or the Senior Interest Side Letter for the applicable Purchased Loan, Transfer or permit to be Transferred, in whole or in part, any Junior Interest held by Seller or any Affiliate of Seller or consent to the Transfer, in whole or in part, of any Transaction hereunder for Junior Interest held by any purpose which violatesother Person, except to a Qualified Transferee; or
(r) consent to, or would be inconsistent withgrant any waiver with respect to, any incurrence of additional debt by the provisions of Regulation T, U Mortgagor or X any mezzanine loan by any direct or indirect beneficial owner of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyMortgagor.
Appears in 1 contract
Samples: Master Repurchase Agreement (Resource Capital Corp.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Buyer in its sole and absolute discretion;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of the Purchased Assets, the other Collateral or Purchased Items, other than the security interest granted by Seller pursuant to Article 5 of this Agreement;
(e) create, incur, assume or suffer to exist any Lien in or on upon any of its property, assets, revenue, the Purchased Assets, the other Collateralassets or revenues, whether now owned or hereafter acquired, other than except for the following, hereinafter referred to as the “Permitted Liens”:
(i) Liens and security interest granted for taxes not yet due or which are being contested in good faith by Seller appropriate proceedings, provided, that adequate reserves with respect thereto are maintained on the books of the related borrower or its subsidiaries, as the case may be, in conformity with GAAP; and
(ii) Liens created pursuant to the Transaction Documents;
(iv) intentionally omitted;
(vf) enter into any transaction of merger or consolidation or amalgamation, that is likely to have a material adverse effect on the creditworthiness or financial condition of Seller, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2926;
(ixh) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Buyer in any material respectits sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xii) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiij) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiiik) directlyenter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(l) from and after August 9, 2012, and through and including March 31, 2013, permit the aggregate Repurchase Price of all Purchased Assets under this Agreement to exceed an amount equal to $15,632,725.46;
(m) permit more than one of Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and Xxx Xxxxxxx to discontinue their current employment with his current responsibilities throughout the term of this Agreement; provided, that if more than one of Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and Xxx Xxxxxxx are no longer so employed, one replacement (if two discontinue) or two replacements (if all three discontinue), as appropriate, acceptable to Buyer in its sole and absolute discretion shall be appointed within thirty (30) days after his departure; and
(i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or through fail to contest in a Subsidiarytimely and appropriate manner, acquire any proceeding or hold title petition described in clause (i), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Seller or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any real propertysuch proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing. Compliance with covenants in this Article 9 must be evidenced by a compliance certificate furnished together therewith as further provided in Article 10(j)(ii) below, and compliance with all such covenants are subject to verification by Buyer.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Items (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Items (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) modify in any material respect or terminate any Servicing Agreements to which it is a party, without the consent of Buyer in its sole and absolute discretion;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction Documentslien and security interest granted by Parent under the Pledge and Security Agreement;
(iv) intentionally omitted;
(ve) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2927;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Buyer in any material respectits sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which that violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiij) directlyenter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(k) take any action, cause, allow, or through permit any of the Seller, any direct or indirect parent of Seller, Guarantor or any direct or indirect Subsidiary of Guarantor to be required to register as an “investment company,” or a Subsidiarycompany “controlled by an investment company,” within the meaning of the Investment Company Act, acquire or hold title to violate any real propertyprovisions of the Investment Company Act, including Section 18 thereof or any rules or regulations promulgated thereunder; or
(l) permit at any time (A) prior to the date that is six (6) months after the Closing Date, less than three (3) Purchased Assets that are Senior Mortgage Loans or less than seven (7) Purchased Assets that are Subordinate Eligible Assets and (B) from and after the date that is six (6) months after the Closing Date, less than three (3) Purchased Assets that are Senior Mortgage Loans (the “Minimum Purchased Asset Requirement”).
Appears in 1 contract
Samples: Master Repurchase Agreement (ARC Realty Finance Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until the Agreement and this Agreement or the Transaction hereunder is Annex I are no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect Purchaser’s Buyer's title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Paragraph 6 of the Agreement;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to Paragraph 6 of the Transaction DocumentsAgreement;
(ive) intentionally omittedmodify or terminate any of the organizational documents of Seller;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Loans other than in accordance with Article 29Section 22 of this Annex I;
(ixg) admit any additional members, partners, shareholders or other holders of ownership interest in Seller, or suffer or permit any pledge or encumbrance of any membership or other ownership interest in Seller, other than a pledge of the organizational documents or jurisdiction of organization of stock in Seller to be amended in any material respectas security for the Sponsor's revolving credit facility;
(xh) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets forfor any equity or ownership interest of Seller, or for a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereofto any equity or ownership interest of Seller, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xii) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior tofile a financing statement, or pari passu withan amendment or termination statement with respect to a financing statement, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest except as approved by Buyer in a Purchased Asset hereunder;each instance; or
(xiij) use any part of the proceeds of any Transaction hereunder for any purpose which violatesdissolve or liquidate, in whole or in part, or would be inconsistent with, the provisions of Regulation T, U consolidate or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, merge with or through a Subsidiary, acquire or hold title to into any real propertyother entity.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until the Agreement and this Agreement or the Transaction hereunder is Annex I are no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect Purchaser’s Buyer's title to any the Purchased Asset Securities or other the Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Securities or the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Securities or Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) with respect to any Purchased Securities purchased by Buyer that are rated lower than "BB" (or the equivalent) or are unrated and where the Related Securities are owned by Seller or an Affiliate of the Seller, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of or pledge or hypothecate, directly or indirectly, any interest in the Related Securities (it being understood that for purposes of this provision Related Securities shall include (a) the securities issued in a "real estate mortgage investment conduit" transaction which have no rating and (b) if such unrated securities do not entitle the holder thereof to control the selection of the special servicer for the mortgage loans underlying such Purchased Securities, the securities which have a rating and entitle the holder thereof to control the selection of the special servicer for the mortgage loans underlying such Purchased Securities); provided however, that this subsection (c) shall not apply or be operative as to any Purchased Securities as to which Seller has delivered an agreement reasonably satisfactory to Buyer irrevocably conveying and transferring to Buyer the right to control the selection of the special servicer for the related mortgage loans.
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Portfolio Securities or the Purchased Loans, except as described in Paragraph 6 of the Agreement;
(e) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to Paragraph 6 of the Transaction DocumentsAgreement;
(ivf) intentionally omittedmodify or terminate any of the organizational documents of Seller;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Portfolio Securities or the Purchased Loans, other than in accordance with Article 29Section 7(f);
(ixh) admit any additional members in Seller, or permit the organizational documents Sponsor to assign or jurisdiction transfer all or any portion of organization of Seller to be amended its member interest in any material respectSeller, which, in either case, would result in an Unpermitted Ownership Interest Transfer;
(xi) at any time after an Event of Default has occurred and is continuing, vote or take any action to exercise any rights afforded to a holder of the Portfolio Securities under the related Securitization Documents;
(j) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;; or
(xik) acquire create any Subsidiaries (it being understood and agreed that the Buyer shall deliver its consent to the formation of a Subsidiary created to refinance or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein resell Collateral transferred to Buyer pursuant to a Transaction under this Agreement and which Subsidiary has a certificate of incorporation substantially in the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part form of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or Exhibit X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyhereto).
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while of this Agreement or the Transaction hereunder and each Purchase Date and until this Agreement is no longer in effectforce with respect to any Transaction, Seller covenants that it shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionnot:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s Buyer's title to any or the value of the Purchased Asset or other Purchased ItemMortgage Loans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transferpledge, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, transfer any interest in any the Purchased Asset or other Purchased Item Mortgage Loans to any Person person not a party to this Agreement (other than Purchaserin connection with a Whole Loan Sale or Permitted Securitization consummated as provided herein) nor will Seller create, incur or engage permit to exist any lien, encumbrance or security interest in repurchase transactions or similar transactions with respect to any on the Purchased Asset or other Purchased Item with any Person other than PurchaserMortgage Loans except in favor of Buyer as described in Section 6 of this Agreement;
(iiic) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(vi) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or (ii) sell all or substantially all of its assets or otherwise sell assets other than in the ordinary course of business, (iii) change its name, identity, corporate structure, state of incorporation or taxable status, or (iv) change its chief executive office or its principal place of business.
(d) create, incur, assume or suffer to exist any Guarantee Obligation, except in connection with the sale or securitization for those Guarantee Obligations existing as of the Purchased Assets date of this Agreement or permitted pursuant to Section 11(p)(v).
(e) engage in any line or lines of business activity other than the businesses now generally carried on by it;
(f) enter into any transaction (including any purchase, sale, lease or exchange of property or the rendering of any service), with any Affiliate (other than transfers to and from Fieldstone Mortgage SPE(ML)-I L.L.C. under that certain Loan Purchase and Sale Agreement, dated as of October 2, 2001, as amended from time to time) unless such transaction is (i) otherwise permitted under this Agreement, (ii) in the ordinary course of Seller’s business after the repurchase thereof 's business, (iii) between FIC and FMC only, and (iv) upon fair and reasonable terms no less favorable to Seller than it would obtain in accordance a comparable arm's length transaction with a Person that is not an Affiliate, or make a payment to any Affiliate that is not otherwise permitted by this Agreement);
(vig) permit a Change except in the absence of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of DefaultDefault and so long as no Event of Default would result from such actions, make any distributionadvance, loan (other than residential mortgage loans in the ordinary course of business), extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person, except for advances, loans or investments in consolidated subsidiaries or to and among Sellers;
(h) make any changes to its fiscal year except after prior written notice to Buyer and Seller's agreement to Buyer's recalculation, in Buyer's discretion, of the financial covenants in Section 12(m);
(i) except in the absence of the occurrence and continuance of an Event of Default and so long as no Event of Default would result from such actions, (i) make any optional payment or prepayment on or redemption or purchase of any Indebtedness, other than in the ordinary course of business or (ii) amend, modify or change, or consent or agree to any amendment, modification or change to any of the terms of any Indebtedness (other than any such amendment, modification or change that would extend the maturity or reduce the amount of any payment of principal thereof or that would reduce the rate or extend the date for payment of interest thereon), other than in the ordinary course of business under any such mortgage warehouse repurchase or financing facility;
(j) enter into any arrangement with any Person providing for the leasing by Seller of real or personal property that has been or is to be sold or transferred by Seller to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of Seller, other than in the ordinary course of business and after written notice to Buyer;
(k) except in the absence of the occurrence and continuance of an Event of Default and so long as no Event of Default would result from such actions, declare or pay any dividend or make any other distribution on, or make any payment on account of, or set apart assets for, for a sinking or other analogous fund for for, the purchase, redemption, defeasance, retirement or other acquisition of any shares of any class of Capital Stock of Sellerthe Seller or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Seller;
(xil) acquire (Reserved);
(m) (Reserved);
(n) enter into any agreement, other than this Agreement or maintain an agreement entered into pursuant to Section 11(p)(iv), 11(p)(v) and 11(p)(vi) below, that prohibits or limits the ability of Seller to create, incur, assume or suffer to exist any right Lien upon any of its property, assets or interest revenues, whether now owned or hereafter acquired;
(o) permit a Change of Control without the express prior written consent of Buyer;
(p) be liable for or create, assume incur, guarantee, or in any Purchased Asset manner become liable, contingently or otherwise, in respect of any Mortgaged Property that is senior toIndebtedness (including Guarantee Obligations), or pari passu with, except:
(i) the rights and interests of Purchaser therein Transactions;
(ii) other Indebtedness to Buyer arising under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderFacility Documents;
(xiiiii) use any part obligations in connection with operating expenses arising in the ordinary course of Seller's business;
(iv) Indebtedness relating solely to the acquisition or leasing of equipment (including computers) used in the ordinary course of business and which may be secured by such equipment, to the extent that such leases are ordinary and customary in Seller's industry, and the proceeds of any Transaction hereunder which are not distributed to Seller except as reimbursement for any purpose which violatesmonies expended to fund the financing, acquisition or would be inconsistent withleasing of such equipment;
(v) customary mortgage warehouse financing or repurchase facilities in the ordinary course of business, after written notice to Buyer and provided that Seller provides to Buyer's reasonable satisfaction a certification setting forth the provisions counterparty, maximum amount of Regulation Tborrowings or repurchases permitted under the facility, U or X and the original maturity date within five days of the Board of Governors of the Federal Reserve Systemclosing thereof; and
(xiiivi) directly, advances in the ordinary course of business between FIC and FMC.
(q) amend or through a Subsidiary, acquire or hold title modify the Underwriting Guidelines in any material manner that will relate to any real propertynew Transaction without first delivering the notice required under Section 12(e) and obtaining Buyer's prior written consent to any such amendment or modification.
Appears in 1 contract
Samples: Master Repurchase Agreement (Fieldstone Investment Corp)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of PurchaserAdministrative Agent, which may be granted or denied at Purchaser’s sole and absolute discretionon behalf of Buyers:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s Administrative Agent’s, on behalf of Buyers, title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserAdministrative Agent, on behalf of Buyers, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserAdministrative Agent, on behalf of Buyers, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreement to which it is a party;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger Lien granted by Pledgor under the Pledge and Security Agreement or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the unless and until such Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement);
(vie) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to, or permit the Primary Servicer or servicer to make, any Significant Modification other than relating to the Purchased Assets without the prior written consent of Administrative Agent, on behalf of Buyers, which shall be granted or denied in accordance with Article 29Administrative Agent’s sole discretion;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respect;
(x) after without the prior written consent of Administrative Agent, which consent shall not, prior to the occurrence and during the continuance of a Default or an Event of Default, make any distributionbe unreasonably withheld, payment conditioned or delayed, other than with respect to special purpose entity provisions, for which consent shall be at Administrative Agent’s, on account ofbehalf of Buyers, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Sellersole discretion;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Administrative Agent, on behalf of Buyers, therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Administrative Agent in writing;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; andLEGAL_US_E # 160815361.8
(xiiij) directlyincur any Indebtedness except as provided in Article 12(i) or otherwise cease to be a Single-Purpose Entity;
(k) intentionally omitted;
(l) take any action, cause, allow, or permit any of the Seller, Pledgor or Guarantor to be required to register as an “investment company”, or a company “controlled by an investment company”, within the meaning of the Investment Company Act, or to violate any provisions of the Investment Company Act, including Section 18 thereof or any rules promulgated thereunder;
(m) after the occurrence and during the continuance of any Potential Event of Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; provided that, so long as no monetary Event of Default referenced in Articles 13(a)(i), (ii), (iii) or (iv) in an amount equal to or greater than $500,000 shall have occurred and be continuing, Seller may distribute the minimum amount of cash required to be distributed so that Guarantor can both (i) maintain its status as a “real estate investment trust” under Sections 856 through a Subsidiary860 of the Code and (ii) avoid the payment of any income or excise taxes imposed under Section 857(b)(1), acquire 857(b)(3) or hold title 4981 or the Code;
(n) make any future advances under any Purchased Asset to any real propertyunderlying obligor that are not provided for in the related Purchased Asset Documents;
(o) seek its dissolution, liquidation or winding up, in whole or in part; or
(p) permit, at any time, a breach of the Concentration Limit.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) modify in any material adverse respect any Servicing Agreements to which it is a party, without the consent of Buyer in its reasonable discretion;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of the Purchased Assets, the other Collateral or Purchased Items, other than the security interest granted by Seller pursuant to Article 6 of this Agreement;
(e) create, incur, assume or suffer to exist any Lien in or on upon any of its property, assets, revenue, the Purchased Assets, the other Collateralassets or revenues, whether now owned or hereafter acquired, other than except for the following, hereinafter referred to as the “Permitted Liens”:
(i) Liens and security interest granted for taxes not yet due or which are being contested in good faith by Seller appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of the related borrower or its subsidiaries, as the case may be, in conformity with GAAP;
(ii) Liens created pursuant to the Transaction Documents;
(iii) Liens created pursuant to or in connection with Other Warehouse Facilities on the financial assets that are the subject of such Other Warehouse Facilities, solely to secure the obligations of Seller under such Other Warehouse Facilities; and
(iv) intentionally omittedLiens on the rights of Seller created pursuant to or in connection with subscription facilities under subscription agreements or other agreements related thereto, including Seller's rights to call capital from its investors;
(vf) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification material amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other material agreement or instrument relating to the Purchased Assets other than in accordance with Article 2928;
(ixh) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectrespect without the prior written consent of Buyer in its sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xii) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in the same becomes a Purchased Asset hereunder;
(xiij) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System;
(k) permit the ratio of (A) the sum of Consolidated Adjusted EBITDA for Seller for such period to (B) Interest Expense for Seller for such period to be less than 1:5 to 1:0;
(l) permit Guarantor’s Liquidity to be less than $15,000,000 (at least $7,500,000 of which shall consist of cash or cash equivalents);
(m) permit Guarantor’s and its consolidated subsidiaries’ Tangible Net Worth at any time to be less than the sum of (A) $700,000,000 plus (B) an amount equal to 75% of the aggregate net proceeds after costs and expenses received by Guarantor or any consolidated subsidiaries of Guarantor in connection with the offering or issuance of any Equity Interest of Guarantor or any consolidated subsidiaries of Guarantor (in each case only to the extent such Equity Interests would be included in Tangible Net Worth) after the Closing Date;
(n) permit the ratio of (A) the sum of Consolidated Adjusted EBITDA for the Guarantor for such period to (B) Interest Expense for the Guarantor for such period to be less than 1:5 to 1:0;
(o) permit the ratio of (A) Guarantor’s and its consolidated Subsidiaries’ Adjusted Total Liabilities to (B) Guarantor’s and its consolidated Subsidiaries’ Adjusted Total Assets to exceed 0.90 to 1.00;
(p) permit the ratio of (A) Guarantor’s and its consolidated Subsidiaries’ Indebtedness (excluding Non-Recourse Indebtedness, borrowings under the Unsecured Credit Facility and trust preferred securities) to (B) Adjusted Total Assets of Guarantor and its consolidated Subsidiaries to exceed 0.10 to 1.00;
(q) permit Guarantor’s minimum Fixed Charge Coverage Ratio at any time to be less than 1.20x; and
(xiiir) directly, or through a Subsidiary, acquire or hold title enter into any Hedging Transaction with respect to any real propertyPurchased Asset with any entity that is not an Affiliated Hedging Counterparty or a Qualified Hedging Counterparty. Compliance with covenants (k) through (q) in this Article 11 shall be evidenced by financial statements and by a compliance certificate furnished together therewith as further provided in Article 12(j)(ii) below, and compliance with all such covenants are subject to verification by Buyer.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect Purchaser’s Buyer's title to any the Purchased Asset Securities or other the Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Securities or the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Securities or Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) with respect to any Purchased Securities purchased by Buyer where the Related Securities are owned by the Seller, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of or pledge or hypothecate, directly or indirectly, any interest in the Related Securities (including, without limitation, any securities which constitute the "controlling class" entitling the holder thereof to control the selection of the special servicer for the mortgage loans underlying such Purchased Securities); provided, however, that this subsection (c) shall not apply or be operative as to any Purchased Securities as to which Seller has delivered an agreement reasonably satisfactory to Buyer irrevocably conveying, transferring and pledging to Buyer the right to control the selection of the special servicer for the related mortgage loans;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Securities or the Purchased Loans, except as described in Section 6 of this Agreement;
(e) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivf) intentionally omittedown any Supplemental Equity Collateral or, to the extent under its control, modify in any material respect or terminate any of the organizational documents of Seller or Sponsor;
(vg) enter into consent or assent to any transaction of merger amendment or consolidation or amalgamationsupplement to, or liquidatetermination of, wind up any Securitization Document, any note, loan agreement, mortgage or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of guaranty relating to the Purchased Assets in Loans or other material agreement or instrument relating to the ordinary course of Seller’s business after Portfolio Securities or the repurchase thereof in accordance with this Agreement)Purchased Loans other than Permitted Purchased Loan Modifications;
(vih) admit any additional members in Seller, or permit the sole member of Seller to assign or transfer all or any portion of its membership interests in Seller in a manner which would result in a Change of Control;
(viii) intentionally omitted;at any time after an Event of Default has occurred and is continuing, vote or take any action to exercise any rights afforded to a holder of the Portfolio Securities under the related Securitization Documents; or
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xj) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Negative Covenants of Seller. On During the term of this Agreement, Seller will not, and each of the Corporate Seller Control Persons, the Mark Xxxxxx Xxxily Trust and Mark Xxxxxx, xxintly and severally, covenants and agrees to cause Seller not to:
(a) Directly or indirectly, incur any obligations (including debt) other than (i) pursuant to or as necessary to comply with the terms and obligations imposed by this Agreement, the Collateral Agreement, the Underwriting Agreement, the Reimbursement Agreement or any other agreement(s) or instrument(s) entered into in connection with the foregoing (collectively, the "DECS Documents"), (ii) the note outstanding as of the date hereof issued by Seller to MH Holdings I, including accrued interest thereon and at all times while this Agreement any replacement, refunding, refinancing, extension or other successor obligation thereto, (iii) organizational and administrative expenses of Seller (including, without limitation, annual state franchise taxes), and (iv) any obligations between or among Seller and any of the Transaction hereunder other Mark Xxxxxx Xxxities, including, without limitation, distribution of available cash and advances provided that each such action is accurately reflected in effectthe books and records of Seller (collectively, Seller shall not without the prior written consent of Purchaser, which may be granted matters in clauses (ii) - (iv) are referred to as "Permitted Obligations").
(b) Acquire or denied at Purchaser’s sole and absolute discretion:
own any property or assets nor engage in any business other than (i) subject entering into the DECS Documents and as necessary to Seller’s right to repurchase any Purchased Asset pursuant to comply with the terms of this Agreementand obligations imposed by the DECS Documents, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at as the beneficiary of a Permitted Obligation of any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;Seller.
(iiic) create, incur, assume Guarantee the debts or suffer to exist any Lien in or on obligations of any of its propertyAffiliates, assetsnor loan money or otherwise provided financial assistance to any of its Affiliates, revenuenor will it pledge, grant a security interest in or lien upon its assets for the Purchased Assetsbenefit of any of its Affiliates, nor will it hold itself out to be responsible for the other Collateral, whether now owned debts or hereafter acquiredobligations of any of its Affiliates or the decisions or actions respecting the affairs of any of its Affiliates, other than (i) entering into the Liens DECS Documents and security interest granted as necessary to comply with the terms and obligations imposed by Seller pursuant to the Transaction DECS Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except ii) in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);a Permitted Obligation.
(vid) permit a Change Permit any of Control;
(vii) intentionally omitted;
(viii) consent its Affiliates to guarantee the debts or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock obligations of Seller, whether now nor will it permit any of its Affiliates to loan money or hereafter outstandingotherwise provide financial assistance to Seller, nor will it permit any of its Affiliates to pledge, grant a security interest in or lien upon such Affiliate's assets for the benefit of Seller, nor will it permit any Affiliate to hold itself out to be responsible for the debts or obligations of Seller or the decisions or actions respecting the affairs of Seller, other than (i) entering into the DECS Documents and as necessary to comply with the terms and obligations imposed by the DECS Documents, or make any other distribution (ii) in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in connection with a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyPermitted Obligation.
Appears in 1 contract
Samples: Forward Purchase Agreement (Herbalife International Inc)
Negative Covenants of Seller. On and as of the date hereof Closing Date, the Amendment and at all times while Restatement Date and each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, neither Seller shall not shall, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to such Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreementsold by such Seller, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Items (or any Purchased Asset or other Purchased Item of it) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Items (or any Purchased Asset or other Purchased Item of it) with any Person other than PurchaserBuyer, unless and until such Purchased Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect or terminate any Servicing Agreements to which it is a party, without the consent of Buyer in its discretion, not to be unreasonably withheld, conditioned, or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, unless and until such Purchased Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction DocumentsLien granted by Parent under the Pledge Agreement;
(ive) intentionally omitted;
(v) except as otherwise expressly permitted herein, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 297(e) or Article 27;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectwithout the prior written consent of Buyer not to be unreasonably withheld, conditioned, or delayed, other than special purpose entity provisions, for which such consent shall be at Buyer’s sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System;
(j) enter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(k) permit, at any time after thirty (30) days subsequent to the Purchase Date of the first Purchased Asset subject to a Transaction, the number of Purchased Assets that are Senior Mortgage Loans to be less than three (3); provided, however, that in the event of an Early Repurchase of all Purchased Assets subject to Transactions, this Article 10(k) shall not apply until such time as Buyer and Seller enter into a new Transaction subsequent to such Early Repurchase of all Purchased Assets; and
(xiiil) directly, take any action that will cause its “centre of main interests” (as such term is defined in European Council Regulation (EC) No. 1346/2000 on Insolvency Proceedings (the “Insolvency Regulation”) to be located in the United Kingdom or through register as a Subsidiary, acquire or hold title to company in any real propertyjurisdiction other than Delaware.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of PurchaserAdministrative Agent, which may be granted or denied at Purchaser’s sole and absolute discretionon behalf of Buyers:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s Administrative Agent’s, on behalf of Xxxxxx, title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserAdministrative Agent, on behalf of Buyers, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserAdministrative Agent, on behalf of Buyers, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreement to which it is a party;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger Lien granted by Pledgor under the Pledge and Security Agreement or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the unless and until such Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement);
(vie) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to, or permit the Primary Servicer or servicer to make, any Significant Modification other than relating to the Purchased Assets without the prior written consent of Administrative Agent, on behalf of Buyers, which shall be granted or denied in accordance with Article 29Administrative Agent’s sole discretion;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respect;
(x) after without the prior written consent of Administrative Agent, which consent shall not, prior to the occurrence and during the continuance of a Default or an Event of Default, make any distributionbe unreasonably withheld, payment conditioned or delayed, other than with respect to special purpose entity provisions, for which consent shall be at Administrative Agent’s, on account ofbehalf of Buyers, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Sellersole discretion;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Administrative Agent, on behalf of Buyers, therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Administrative Agent in writing;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; andLEGAL_US_E # 160815361.8
(xiiij) directlyincur any Indebtedness except as provided in Article 12(i) or otherwise cease to be a Single-Purpose Entity;
(k) intentionally omitted;
(l) take any action, cause, allow, or permit any of the Seller, Pledgor or Guarantor to be required to register as an “investment company”, or a company “controlled by an investment company”, within the meaning of the Investment Company Act, or to violate any provisions of the Investment Company Act, including Section 18 thereof or any rules promulgated thereunder;
(m) after the occurrence and during the continuance of any Potential Event of Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; provided that, so long as no monetary Event of Default referenced in Articles 13(a)(i), (ii), (iii) or (iv) in an amount equal to or greater than $500,000 shall have occurred and be continuing, Seller may distribute the minimum amount of cash required to be distributed so that Guarantor can both (i) maintain its status as a “real estate investment trust” under Sections 856 through a Subsidiary860 of the Code and (ii) avoid the payment of any income or excise taxes imposed under Section 857(b)(1), acquire 857(b)(3) or hold title 4981 or the Code;
(n) make any future advances under any Purchased Asset to any real propertyunderlying obligor that are not provided for in the related Purchased Asset Documents;
(o) seek its dissolution, liquidation or winding up, in whole or in part; or
(p) permit, at any time, a breach of the Concentration Limit.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, neither Seller shall not shall, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to such Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreementsold by such Seller, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Items (or any Purchased Asset or other Purchased Item of it) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Items (or any Purchased Asset or other Purchased Item of it) with any Person other than PurchaserBuyer, unless and until such Purchased Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect or terminate any Servicing Agreements to which it is a party, without the consent of Buyer in its discretion, not to be unreasonably withheld, conditioned, or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, unless and until such Purchased Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction DocumentsLien granted by Parent under the Pledge Agreement;
(ive) intentionally omitted;
(v) except as otherwise expressly permitted herein, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 297(e) or Article 27;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectwithout the prior written consent of Buyer not to be unreasonably withheld, conditioned, or delayed, other than special purpose entity provisions, for which such consent shall be at Buyer’s sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System;
(j) enter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(k) permit, at any time after thirty (30) days subsequent to the Purchase Date of the first Purchased Asset subject to a Transaction, the number of Purchased Assets that are Senior Mortgage Loans to be less than three (3); provided, however, that in the event of an Early Repurchase of all Purchased Assets subject to Transactions, this Article 10(k) shall not apply until such time as Buyer and Seller enter into a new Transaction subsequent to such Early Repurchase of all Purchased Assets; and
(xiiil) directly, take any action that will cause its “centre of main interests” (as such term is defined in European Council Regulation (EC) No. 1346/2000 on Insolvency Proceedings (the “Insolvency Regulation”) to be located in the United Kingdom or through register as a Subsidiary, acquire or hold title to company in any real propertyjurisdiction other than Delaware.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:discretion (except as expressly set forth below):
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this AgreementAsset, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assignassign by way of security, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge pledge, charge, mortgage or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than PurchaserPurchaser (other than the Liens and security interest granted by Seller pursuant to the Transaction Documents), or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) to the extent the same would cause Seller to violate the covenants contained in this Agreement or Guarantor to violate the financial covenants contained in the Guaranty;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omittedpermit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property or Borrower to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, senior or pari passu mortgage debt, junior mortgage debt or mezzanine debt (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against any related Mortgaged Property);
(viii) consent or assent to any Significant Modification other than in accordance with Article 2929 and the Servicer Letter;
(ix) permit the Organizational Documents or organizational documents or jurisdiction of organization structure of Seller to be amended in any material respectrespect (provided that, for this purpose any change of Seller’s certificate of incorporation (other than any such change which complies with Article 12(a)(vV) or jurisdiction of incorporation shall be deemed material);
(x) after the occurrence and during the continuance of a monetary Default or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such a right or interest in is a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (TPG RE Finance Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to Section 6 of this Agreement and the Transaction Documentslien granted by Pledgor under the Pledge and Security Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Asset without the prior written consent of merger or consolidation or amalgamationBuyer in its sole discretion; provided, or liquidatehowever, wind up or dissolve itself that if Buyer shall fail to deliver written consent to a Significant Modification within five (or suffer any liquidation, winding up or dissolution5) Business Days of receipt of notice thereof from Seller in accordance with Section 12(o), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course Buyer’s failure to respond shall be deemed to be a denial of Seller’s business after request and upon any deemed or explicit denial from Buyer, Seller shall have the option to repurchase thereof such Purchased Asset pursuant to and in accordance with this AgreementSection 3(i);
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; provided that, notwithstanding the foregoing, Seller shall, during a non-monetary default, be permitted to pay any dividends or distributions necessary to maintain the status of the Guarantor as a REIT.
(h) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(xii) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any substantially similar Requirements of Law (except to the extent a result of or otherwise in connection with Buyer holding Plan Assets);
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended in any material respect without the prior written consent of Buyer in its sole discretion (such consent not to be unreasonably withheld, delayed or denied);
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use any part of the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of comprehensive Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer); or
(p) knowingly, directly or indirectly use the proceeds from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyregulations.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) [intentionally omitted]
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Assets, except as described in Section 6 of this Agreement;
(e) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivf) intentionally omittedmodify in any material respect or terminate any of the organizational documents of Seller or Sponsor;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment or supplement to, or termination of, any Purchased Asset Document relating to any of the Purchased Assets other than in accordance with Article 29Permitted Purchased Loan Modifications;
(ixh) admit any additional members in Seller, or permit the organizational documents or jurisdiction of organization sole member of Seller to be amended assign or transfer all or any portion of its membership interest in any material respectSeller;
(xi) at any time after an Event of Default (other than with respect to Buyer) has occurred and is continuing, vote or take any action to exercise any rights afforded to a holder of the Purchased Securities under the related Securitization Documents; or
(j) after the occurrence and during the continuance continuation of an Event of DefaultDefault (in each case, other than with respect to Buyer), make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (Resource Capital Corp.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) to the extent the same would cause Seller to violate the covenants contained in this Agreement or Guarantor to violate the financial covenants contained in the Guaranty;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omittedpermit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property or Borrower to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, senior or pari passu mortgage debt, junior mortgage debt or mezzanine debt (in each case, unless expressly permitted by the applicable Purchased Asset Documents or with Purchaser’s consent and excluding non-consensual Liens against any related Mortgaged Property);
(viii) consent or assent to any Significant Material Modification other than in accordance with Article 2929 and the Servicer Letter;
(ix) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectwithout the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned);
(x) after the occurrence and during the continuance of a monetary Default or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in is a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony NorthStar Credit Real Estate, Inc.)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any such Purchased Asset or other Purchased Item with any Person other than PurchaserBuyer, except where such Purchased Asset is simultaneously repurchased from Buyer in accordance with this Agreement;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Asset without the prior written consent of merger Buyer (which shall not be unreasonably withheld, delayed or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all conditioned so long as no Event of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this AgreementDefault is continuing);
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan; [NEWYORK 3032673_23]
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws assuming in all events that the assets of Buyer do not include Plan Assets;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned);
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents without the prior written consent of Buyer unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use any part of the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer); or
(p) knowingly, directly or indirectly use the proceeds from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyregulations.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income II, Inc.)
Negative Covenants of Seller. On and as of Seller agrees that, from the date hereof and at all times while this Agreement or until the Transaction hereunder is terminated and the Agreement is no longer in effectforce, Seller shall not, and shall not without the prior written consent permit any of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionits Subsidiaries to:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would impair the value or marketability of the Purchased Securities or be inconsistent with, or result in a violation of, any provision of any of the Transaction Documents;
(b) directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Assetsell, transfer, assign, convey, grant, bargain, sell, set over, deliver assign or otherwise dispose of, or pledge create, incur or hypothecate, directly or indirectlypermit to exist any Lien upon, any interest in any Purchased Asset the Collateral to or other Purchased Item to for the benefit of any Person other than PurchaserBuyer (other than Permitted Liens), or engage in repurchase transactions or similar transactions with respect to any the Purchased Asset or other Purchased Item Securities with any Person other than PurchaserBuyer;
(iiic) createunless otherwise expressly permitted by the Agreement, incurdirectly or indirectly assign or transfer any revenues, assume receipts or suffer to exist any Lien in assets of Seller or on any of its propertyConsolidated Subsidiaries to CMSLP or the AIM Funds; provided, assetshowever, revenue, that the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted provisions of this clause (c) shall not apply to payments made by Seller or any of its Consolidated Subsidiaries to CMSLP for services rendered by CMSLP pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter any arm's-length transaction entered into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after business;
(d) modify or amend any of the constituent documents (i) of Seller in a manner that could reasonably be expected to have a Material Adverse Effect or that would otherwise be inconsistent with or result in a violation of any of the terms of the Transaction Documents or (ii) of any Designated Seller Affiliate without the prior written consent of Buyer in each instance;
(e) modify or amend the terms of the New Note Indentures or the New Notes or the Noteholder Preferred Stock, or any of them, so as to (i) change the scheduled maturity thereof (or so as to give any holder thereof any additional right to accelerate the maturity thereof or require full or partial prepayment thereof prior to the occurrence of an event of default thereunder) to a date earlier than the fifth (5th) anniversary of the date hereof (in the case of the Series A Notes) or the sixth (6th) anniversary of the date hereof (in the case of the Series B Notes) without the prior written consent of Buyer or (ii) without limiting the generality of the immediately preceding clause (i), provide for any mandatory prepayment, redemption, repurchase thereof or defeasance of any of the New Notes or any Noteholder Preferred Stock other than those provided for in accordance with this Agreementthe following sections of the New Note Indentures as in effect on the Purchase Date (and without giving effect to any amendments thereto): 3.08(b), 3.08(c), 3.08(d) (Series A Note Indenture only), 3.08(e) (Series A Note Indenture only), 4.07(b)(ii)(D), 4.10(b)(iv), 4.15 and 4.17 (Series A Note Indenture only);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment, modification or termination of any Securitization Document directly or indirectly relating to any of the CBO-2 Securities or the CBO-1/Nomura Securities (in each case other than in accordance with Article 29a purely ministerial amendment or modification);
(ixg) permit enter into, modify, amend or terminate any Hedging Transaction without the organizational documents or jurisdiction prior written consent of organization of Seller Buyer (which consent shall not be unreasonably withheld to be amended the extent so provided in any material respectSection 12(d));
(xi) after the occurrence and during the continuance of an Event of Default, make any distribution, principal payment on account ofthe New Notes in contravention of Section 4, or set apart assets for(ii) regardless of whether such action shall be permitted under Section 4, a sinking xxxxxxxxxx, xxxxxx, xxxxxxxx or other analogous fund for the purchase, redemption, defeasance, retirement otherwise acquire any New Notes or other acquisition any shares of any Capital Noteholder Preferred Stock unless such New Notes or shares of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of SellerNoteholder Preferred Stock are promptly cancelled;
(xii) acquire declare or maintain pay any right or interest Restricted Payments in any Purchased Asset respect of the Common Stock or any Mortgaged Property that is senior to, series of Preferred Stock in contravention of Section 5(g) or pari passu with, 5(h) or the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.definition
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionAdministrative Agent:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title of Administrative Agent to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose ofof (including, without limitation, any effective transfer or other disposition or allocation among newly divided limited liability companies pursuant to a “plan of division” under the Delaware Limited Liability Company Act), or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than Purchaser, Administrative Agent or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserAdministrative Agent, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralCollateral or Purchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction DocumentsLien granted by Sponsor under the Pledge and Security Agreement or unless and until such Purchased Asset relating to such Purchased Items or Collateral is repurchased by Seller in accordance with this Agreement;
(iv) intentionally omitted;
(ve) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after business) without the repurchase thereof consent of Administrative Agent in accordance with this Agreement)its sole discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification relating to the Purchased Assets or other than in accordance with Article 29agreement or instrument relating to the Purchased Assets;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectwithout the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Administrative Agent therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Administrative Agent in writing;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiiij) directlyincur any Indebtedness other than pursuant to, or through a Subsidiaryand in accordance with, acquire or hold title to any real propertythis Agreement and the other Transaction Documents.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Starwood Credit Real Estate Income Trust)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement other than Permitted Encumbrances;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer other than Permitted Encumbrances;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiie) consent or assent to any a Significant Modification other than in accordance with Article 29of any Purchased Asset without the prior written consent of Buyer;
(ixf) take any action or permit the organizational documents or jurisdiction of organization of Seller such action to be amended taken which would result in any material respecta Change of Control. Buyer hereby acknowledges and agrees that, notwithstanding anything to the contrary herein, an IPO Transaction with respect to Sponsor and/or Guarantor shall not be prohibited pursuant to this Agreement;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws with respect to Seller;
(j) intentionally omitted;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended in any material respect without the prior written consent of Buyer in its sole discretion other than in accordance with the terms of such organizational documents (including, without limitation, amendments which are necessary to reflect the appointment or removal of officers or other ministerial or corrective amendments, as the case may be)
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use the proceeds from any part Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer);
(p) knowingly, directly or indirectly use the proceeds from any Transaction or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any activity that would violate applicable anti-corruption laws, rules, or regulations;
(q) permit, at any time other than during the Wind Down Period, a breach of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve SystemConcentration Limit unless otherwise consented to by Buyer; andor
(xiiir) directly, cause any Purchased Asset to be serviced by any servicer other than Servicer or through a Subsidiary, acquire or hold title to any real propertyservicer expressly approved in writing by Buyer.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (TPG RE Finance Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not (and with respect to subsection (o) below, shall not permit Sponsor or any Affiliate of Sponsor to) without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemMortgage Loans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Mortgage Loans (or any Purchased Asset of them) or other Purchased Item Hedging Transactions to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Mortgage Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) create, incurincur or permit to exist any Lien in or on the Purchased Mortgage Loans, assume except as described in Section 6 of this Agreement other than Permitted Encumbrances;
(d) create, incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to Section 6 of this Agreement other than Permitted Encumbrances;
(e) modify or amend in any material respect, or terminate the Seller Operating Agreement or any other organizational documents of Seller; provided that, any modification or amendment to the Special Purpose Provisions shall be deemed material;
(f) change its name, organizational number, tax identification number, method of accounting, identity, structure or jurisdiction of organization;
(g) consent or assent to any amendment, modification or supplement to, or termination of any Mortgage Note, the Mortgage Loan Agreement, any Mortgage or guaranty relating to the Purchased Mortgage Loans or other material agreement or instrument relating to the Purchased Mortgage Loans, other than Permitted Purchased Mortgage Loan Modifications;
(h) enter into forbearance agreements relating to any Purchased Mortgage Loan;
(i) permit Guarantor to cease to own and control, of record and beneficially, directly or indirectly, 100% of each class of the outstanding Capital Stock of Seller;
(j) after the occurrence and during the continuation of (1) any monetary or material non-monetary Default, make any Distribution except to the extent necessary in order to preserve Sponsor’s status as a real estate investment trust or (2) any Event of Default or Margin Call, make any Distribution;
(k) contract, create, incur, assume or permit to exist any Investments, except to the extent arising under this Agreement or the Transaction Documents; provided, however, that Seller shall not be in breach of this provision to the extent that Seller acquires or originates an Eligible Mortgage Loan under its good faith belief that such Eligible Mortgage Loan will become a Purchased Mortgage Loan;
(ivl) intentionally omittedfile a financing statement in which the Seller is the debtor (as opposed to the secured party), or an amendment or termination statement with respect to a financing statement in which the Seller is the debtor and the Buyer is the secured party;
(vm) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind wind-up or of dissolve itself (or suffer any liquidation, winding winding-up or dissolution), or discontinue its business or engage in any other business other than the business of acquiring or originating Eligible Mortgage Loans, or sell all or substantially all of its assets assets;
(except n) Seller will not request any Transaction, and shall not use, and the Seller shall ensure that the Seller and its respective directors, officers, employees and agents acting or benefiting in any capacity in connection with the sale Transactions shall not use, the proceeds or securitization permit the use of any proceeds of the Purchased Assets Transactions to be used, directly or indirectly (i) 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 or (ii) in any manner that would result in the ordinary course violation of Seller’s business after the repurchase thereof in accordance with this Agreement)any applicable Sanctions;
(vio) permit (i) establish, maintain, contribute to, or incur any liability (contingent or otherwise) or with respect to, any Pension Plan; (ii) take any action that would cause its underlying assets to constitute Plan Assets; (iii) if any Seller Party intends to qualify as an Operating Company change its Annual Valuation Period without giving prior written notice to Buyer; and (iv) assuming that no portion of the assets used by Buyer in connection with the transactions contemplated by the Transaction Documents constitutes the assets of any “employee benefit plan” (within the meaning of Section 3(3) of ERISA) that is subject to Title I of ERISA or a Change “plan” within the meaning of ControlSection 4975 of the Code take any action, or omit to take any action, that would give rise to a “non-exempt prohibited transaction” under Section 4975(c)(1)(A), (B), (C) or (D) of the Code or Section 406(a) of ERISA and would subject Buyer to any tax, penalty, damages or any other claim or relief under the Code or ERISA;
(viip) intentionally omitted;except for Permitted Purchased Mortgage Loan Modifications, amend, modify, supplement or terminate the Mortgage Loan Purchase Documents or waive any term or provision thereof; or
(viiiq) consent enter into any acknowledgement or assent to agreement that gives any Significant Modification other than in accordance with Article 29;
Person or entity (ixexcept Buyer) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account ofcontrol over, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereofsecurity interest, either directly lien or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu withtitle in, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyCash Management Account.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (TPG RE Finance Trust, Inc.)
Negative Covenants of Seller. On With respect to the Business, Seller covenants and as of agrees that between the date hereof and at all times while this Agreement or the Transaction hereunder is in effectClosing Date, Seller shall not engage in any transaction or incur any obligation or liability with respect to the Business except in the ordinary course of its business as presently conducted; and shall use its commercially reasonable best efforts to preserve its business organization to keep such Business intact, to keep available a work force of a quality and quantity capable of rendering services comparable to the services of its present employees and to preserve the goodwill of its suppliers, customers and others having business relations with Seller relating to said programs. Without limiting the generality of the foregoing, Seller, with regard to its Business, shall not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretiondo any of the following:
(iA) subject to from the date hereof and through the Closing Date, materially amend, terminate or otherwise materially modify any of its contracts or commitments in a manner that would materially and adversely affect the Accounts, except as required by Requirements of Law;
(B) from the date hereof and through the Closing Date, re-age any of the Accounts and/or Receivables, except as required by Requirements of Law;
(C) (and shall not allow any affiliate to), except as otherwise permitted in Section 13(f) of that certain Joint Marketing Agreement dated of even date herewith between Seller’s right parent corporation and Purchaser (the “Joint Marketing Agreement”), at any time within the Restricted Period, specifically target (other than the assistance provided by Seller’s parent corporation to repurchase any Purchased Asset pursuant to Purchaser in accordance with the terms of this the Joint Marketing Agreement) any offer of a credit card or charge card to Persons who were Cardholders with an Account; provided, take any action however, that would Seller may offer Persons who were Cardholders the opportunity to participate in another credit card or charge card program endorsed by Seller provided the opportunity is not only made available to such Persons, but rather is offered as a part of a general solicitation to all customers of Seller, and provided further that no such Persons are directly or indirectly impair identified as a customer of Purchaser or adversely affect Purchaser’s title offered any terms or incentives different from that offered to any Purchased Asset or all other Purchased Itemcustomers of Seller;
(iiD) at any time a Transaction is outstanding with respect to any Purchased Assetfrom the date hereof and through the Closing Date, transfersell, assign, convey, grant, bargain, sell, set over, deliver lease or otherwise transfer or dispose of, or pledge or hypothecate, directly or indirectly, of any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaserof the Assets;
(iiiE) createfrom the date hereof and through the Closing Date, incur, assume communicate with any Cardholder or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization users of the Purchased Assets Accounts, except in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit past practice and custom and in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset manner which does not identify Purchaser or any Mortgaged Property of Purchaser’s affiliates or as required by Requirements of Law; provided, however, that is senior to, or pari passu with, the rights and interests Seller shall first notify Purchaser of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve Systemcommunications; and
(xiiiF) directlyfrom the date hereof and through the Closing Date and notwithstanding the immediately above section (E) or any other sections of this Agreement, market or through a Subsidiarysolicit, acquire via telemarketing, direct mail, direct promotions or hold title to the internet, the Cardholders any real propertyreduced rate offer without Purchaser’s prior written consent.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this AgreementAsset, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Items (or any Purchased Asset or other Purchased Item of it) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Items (or any Purchased Asset or other Purchased Item of it) with any Person other than PurchaserBuyer, unless and until such Purchased Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Buyer in its discretion, not to be unreasonably withheld, conditioned, or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, unless and until such Purchased Asset relating to such Purchased Items is repurchased by Seller in accordance with this Agreement, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction DocumentsLien granted by Parent under the Pledge Agreement;
(ive) intentionally omitted;
(v) except as otherwise expressly permitted herein, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Section 7(e) or Article 2927;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectwithout the prior written consent of Buyer not to be unreasonably withheld, conditioned, or delayed, other than special purpose entity provisions, for which such consent shall be at Buyer’s sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System;
(j) enter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty; and
(xiiik) directlypermit, or through at any time after thirty (30) days subsequent to the Purchase Date of the first Purchased Asset subject to a SubsidiaryTransaction, acquire or hold title the number of Purchased Assets that are Senior Mortgage Loans to any real propertybe less than three (3); provided, however, that in the event of an Early Repurchase of all Purchased Assets subject to Transactions, this Article 10(k) shall not apply until such time as Buyer and Seller enter into a new Transaction subsequent to such Early Repurchase of all Purchased Assets.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof Closing Date, Restructuring Amendment Date and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to Section 6 of this Agreement and the Transaction Documentslien granted by Pledgor under the Pledge and Security Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Asset without the prior written consent of merger or consolidation or amalgamationBuyer in its sole discretion; provided, or liquidatehowever, wind up or dissolve itself that if Buyer shall fail to deliver written consent to a Significant Modification within five (or suffer any liquidation, winding up or dissolution5) Business Days of receipt of notice thereof from Seller in accordance with Section 12(o), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course Buyer’s failure to respond shall be deemed to be a denial of Seller’s business after request and upon any deemed or explicit denial from Buyer, Seller shall have the option to repurchase thereof such Purchased Asset pursuant to and in accordance with this AgreementSection 3(i);
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; provided that, notwithstanding the foregoing, Seller shall, during a non-monetary default, be permitted to pay any dividends or distributions necessary to maintain the status of the Guarantor as a REIT.
(h) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(xii) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any substantially similar Requirements of Law (except to the extent a result of or otherwise in connection with Buyer holding Plan Assets);
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended in any material respect without the prior written consent of Buyer in its sole discretion (such consent not to be unreasonably withheld, delayed or denied);
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiio) knowingly, directly or indirectly use any part of the proceeds from any Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of comprehensive Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer); or
(p) knowingly, directly or indirectly use the proceeds from any Transaction hereunder or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any purpose which violatesactivity that would violate applicable anti-corruption laws, rules, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyregulations.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any the Purchased Asset or Assets and the other Purchased ItemItems;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or Assets and the other Purchased Item Items to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or Assets and the other Purchased Item Items with any Person other than Purchaser;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation not otherwise permitted under this Agreement, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) if the same would cause the Seller to violate the covenants contained in Article 12 or the Guarantor to violate the financial covenants contained in the Guaranty;
(ve) permit (through the giving of consent, waiver, failure to object (if Seller has such right) or otherwise) any Mortgaged Property or Mortgagor to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt without the consent of the Purchaser (in each case, unless expressly permitted by the applicable Purchased Asset Documents and excluding non-consensual Liens against the related Mortgaged Property);
(f) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except to Purchaser) without the consent of Purchaser in connection with its sole and absolute discretion, unless it will result in the sale or securitization satisfaction of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)Repurchase Obligations;
(vig) permit a Change of ControlControl of Seller;
(viih) intentionally omitted;
(viii) except to the extent expressly authorized in or required by such documents, consent or assent to any Significant Modification amendment, modification, waiver or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2927 and the Interim Servicing Agreement;
(ixi) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Purchaser in any material respectits sole and absolute discretion;
(xj) after the occurrence and during the continuance of a Default or an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xik) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;Documents; and
(xiil) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is are no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) [Intentionally Omitted];
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Section 6 of this Agreement;
(e) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivf) intentionally omitted;modify in any material respect or terminate any of the organizational documents of Seller; Repurchase Agreement $400MM Facility
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other than in accordance with Article 29material agreement or instrument relating to the Purchased Loans;
(ixh) admit any additional shareholders in Seller, or permit the organizational documents or jurisdiction of organization respective sole shareholder of Seller to be amended assign or transfer all or any portion of its shares in any material respectSeller;
(xi) [Intentionally Omitted];
(j) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
Negative Covenants of Seller. On and as of the date hereof of this Agreement and each Purchase Date and at all times while this Agreement or the and any Transaction hereunder is in effecteffect or any Repurchase Obligations remain outstanding, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any the Purchased Asset pursuant to the terms of this AgreementAssets, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Assets in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Repurchase Assets or other collateral subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest interests granted by Seller pursuant to the Transaction DocumentsSection 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets or Hedging Transaction relating to the Purchased Assets for the benefit of any Person other than Buyer;
(ve) enter into any transaction of merger consent or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)assent to a Significant Modification;
(vif) take any action or permit such action to be taken which would result in a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Default or Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to, any Plan;
(i) engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Assets or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under any other similar Laws;
(j) make any future advances under any Purchased Asset to any underlying obligor that are not permitted by the related Purchased Asset Documents;
(k) seek its dissolution, liquidation or winding up, in whole or in part;
(l) incur any Indebtedness except as provided in Section 13(i) hereof or otherwise cease to be a Single-Purpose Entity;
(m) permit the organizational documents or organizational structure of Seller to be amended without the prior written consent of Buyer, which consent shall not, prior to the occurrence and during the continuance of a Default or an Event of Default, be unreasonably withheld, conditioned or delayed, other than with respect to special purpose entity provisions, for which consent shall be at Buyer’s sole discretion;
(n) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunderhereunder or unless such right or interest exists as of the Purchase Date for such Purchased Asset and is approved by Buyer in writing;
(xiio) knowingly, directly or indirectly use the proceeds from any part Transaction, or lend contribute or otherwise make available such proceeds to any other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including Buyer);
(p) knowingly, directly or indirectly use the proceeds from any Transaction or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing or facilitating any activity that would violate applicable anti-corruption laws, rules, or regulations;
(q) permit, at any time, a breach of the proceeds Concentration Limit due to an early repurchase pursuant to Section 3(i) above (provided, however, in the event of any Transaction hereunder for any purpose which violatessuch a breach, no later than two (2) Business Days after receipt of notice of such breach from Buyer or Seller acquiring knowledge thereof, Seller may cure such breach by: (i) delivering to Buyer cash, (ii) repurchasing such Purchased Assets giving rise to such breach of the Concentration Limit at their Repurchase Prices, or would be inconsistent with(iii) choosing any combination of the foregoing, such that, after giving effect to such transfers, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve SystemConcentration Limit is no longer breached); andor
(xiiir) directly, or through cause any Purchased Asset to be serviced by any servicer other than a Subsidiary, acquire or hold title to any real propertyservicer expressly approved in writing by Buyer.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Granite Point Mortgage Trust Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the any Transaction hereunder is in effect, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item Assets with any Person other than Purchaser;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedincur or permit to exist any Indebtedness if the same would cause Seller to violate the covenants contained in Article 12;
(ve) subject to Article 27, permit (through the giving of consent, waiver, failure to object or otherwise) any Mortgaged Property, any Capital Stock in any Mortgagor securing any Mezzanine Loan, Mortgagor or Mezzanine Borrower, in each case, relating to any Purchased Asset, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt (in each case, excluding Permitted Encumbrances against the related Mortgaged Property and except to the extent that any such Liens or Indebtedness are otherwise created, incurred, assumed or permitted in accordance with the Purchased Asset Documents);
(f) consent or assent to any Significant Modification relating to any Purchased Asset other than in accordance with Article 27 and the Servicing Agreement or Servicer Letter (as applicable);
(g) permit the organizational documents or organizational structure of Seller to be amended in any material respect without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed;
(h) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)assets;
(vii) permit suffer a Change of ControlControl of Seller;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xj) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xik) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property relating to any Purchased Asset that is senior to, to or pari passu with, with the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderDocuments;
(xiil) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiim) directly, or through a Subsidiary, acquire or hold title to any real property; or
(n) make any election or otherwise take any action that would cause Seller to be treated as an association taxable as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this each Purchase Date and until the Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s 's right to repurchase any Purchased Asset pursuant to the terms of this Agreementrepurchase, take any action that which would directly or indirectly impair or adversely affect Purchaser’s Buyer's title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Loans in question are simultaneously repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Loans, except as described in Section 6 of this Annex I;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 of this Annex I;
(ive) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Hedging Transaction for the benefit of any Person other than Buyer;
(vf) enter into materially modify or terminate any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course organizational documents of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any a Significant Modification or any extension or termination of any note, loan agreement, mortgage, pledge agreement or guaranty relating to the Purchased Loans or other than in accordance with Article 29material agreement or instrument relating to the Purchased Loans without the prior written consent of Buyer;
(ixh) take any action or permit the organizational documents or jurisdiction of organization of Seller such action to be amended taken which would result in any material respecta Change in Control;
(xi) after the occurrence and during the continuance continuation of an any Event of Default or monetary Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; or
(j) sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to any Plan and shall not permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) with respect to any Plan;
(xik) acquire or maintain any right or interest engage in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under the Agreement, the Purchased Asset Loans or any Mortgaged Property that is senior toTransaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or pari passu withsubstantially similar provisions under any other federal, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right state or interest in a Purchased Asset hereunder;local laws, rules or regulations; or
(xiil) use make any part of the proceeds of future advances under any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title Purchased Loan to any real propertyunderlying obligor which are not permitted by the related Purchased Loan Documents.
Appears in 1 contract
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Items (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Items (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Asset relating to such Purchased Item is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any servicing agreements to which it is a party, without the consent of Buyer in its discretion, such discretion not to be unreasonably withheld, conditioned or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralPurchased Items, whether now owned or hereafter acquired, other than the Liens liens and security interest granted by Seller pursuant to Article 6 of this Agreement and the Transaction Documentslien and security interest granted by Parent under the Pledge and Security Agreement;
(iv) intentionally omitted;
(ve) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole and absolute discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 2927;
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended in any material respectwithout the prior written consent of Buyer, such consent not to be unreasonably withheld, conditioned, or delayed, other than special purpose entity provisions, for which such consent shall be at Buyer’s sole and absolute discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiij) directlyenter into any Hedging Transaction with respect to any Purchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty;
(k) take any action, cause, allow, or through permit any of the Seller, Parent or Guarantor to be required to register as an “investment company,” or a Subsidiarycompany “controlled by an investment company,” within the meaning of the Investment Company Act, acquire or hold title to violate any real propertyprovisions of the Investment Company Act, including Section 18 thereof or any rules or regulations promulgated thereunder;
(l) permit, at any time, the number of Purchased Assets to be less than three (3); or
(m) permit, at any time, a breach of the Concentration Limit.
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony Financial, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreementrepurchase, take any action that which would directly or indirectly materially impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemLoans;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Loans (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, except where the Purchased Loans in question are or have been repurchased from Buyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased AssetsLoans, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documentsexcept as described in Section 6 of this Agreement;
(ivd) intentionally omittedcreate, incur or permit any lien, security interest, charges, or encumbrances with respect to any Repurchase Assets for the benefit of any Person other than Buyer;
(ve) enter into consent or assent to a Significant Modification of any transaction Purchased Loan without the prior written consent of merger Buyer, not to be unreasonably withheld, conditioned or consolidation or amalgamation, or liquidate, wind up or dissolve itself delayed;
(or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except f) other than in connection with the sale a Capital Markets Event, take any action or securitization of the Purchased Assets permit such action to be taken which would result in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xg) after the occurrence and during the continuance continuation of an any Event of Default, monetary Default or material non-monetary Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire sponsor or maintain any right Plans or interest in make any Purchased Asset or any Mortgaged Property that is senior contributions to, or pari passu withhave any liability or obligation (direct or contingent) under Title IV of ERISA with respect to, the rights and interests any Plan or permit any ERISA Affiliate to sponsor or maintain any Plans or make any contributions to, or have any liability or obligation (direct or contingent) under Title IV of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunderERISA with respect to, any Plan;
(xiii) use engage in any part transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Buyer of any of its rights under this Agreement, the Purchased Loans or any Transaction Document) to be a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the proceeds of Code or substantially similar provisions under any Transaction hereunder for other federal, state or local laws, rules or regulations;
(j) make any purpose which violatesfuture advances under any Purchased Loan to any Underlying Obligor that are not permitted or contemplated by the related Purchased Loan Documents;
(k) seek its dissolution, liquidation or would winding up, in whole or in part; or
(l) incur any Indebtedness except as provided in Section 9(a)(ii), cease to be inconsistent with, the provisions of Regulation T, U a Special Purpose Entity or X at any time violate any of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertyrequirements set forth in Section 9.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionthe Buyers:
(i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, 9.1 take any action that which would directly or indirectly impair or adversely affect Purchaser’s the Buyers' title to any the Purchased Asset or other Purchased Item;Assets; or
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, 9.2 transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than Purchaserthe Buyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than Purchaser;the Buyers so long as such Purchased Assets are subject to this Agreement; or
(iii) 9.3 create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets subject to the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Section 5 of this Agreement, except as described in Section 5 of this Agreement; or
9.4 modify or terminate any of the Transaction Documents;organizational documents of Seller; or
(iv) intentionally omitted;
(v) 9.5 change its corporate or limited liability company structure, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets or acquire or form any Subsidiaries; or
9.6 change its fiscal year or method of accounting, unless Seller shall give the Buyers at least fifteen (except in connection with the sale or securitization 15) days prior written notice of any such requested change, which notice shall include a detailed explanation of the Purchased Assets in changes intended to be made and pro forma financial statements demonstrating the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);impact thereof; or
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viii) 9.7 consent or assent to any Significant Modification amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Assets other than a Permitted Purchased Loan Modification; or
9.8 admit any additional members in accordance with Article 29;
(ix) Seller, or permit the organizational documents or jurisdiction of organization of Member in Seller to be amended assign or transfer all or any portion of its member interest in Seller; or
9.9 Reserved; or
9.10 so long as any material respect;
(x) after the occurrence and during the continuance of an Default, Event of DefaultDefault or Margin Deficit shall be continuing, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;; provided, that so long as no Default or Event of Default or Margin Deficit shall have occurred and be continuing, Seller may make such payments solely to the extent necessary to maintain its status as a REIT; or
(xi) 9.11 enter into any transaction with an Affiliate; unless Seller has received the prior written consent of the Buyer to enter into such transaction and such transaction is upon fair and reasonable terms no less favorable to Seller than it would obtain in a comparable arm's length transaction with a Person which is not an Affiliate; or
9.12 declare or make any payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any equity or partnership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; or
9.13 acquire or maintain maintain, nor allow any Affiliate to acquire or maintain, any right or interest not disclosed in writing to Buyer in any Purchased Asset or any Underlying Mortgaged Property that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Repurchase Documents; or
9.14 (i) own any property or any other assets other than the Purchased Assets, cash and its interest under any associated Hedging Agreements; (ii) engage in any business other than the acquisition, ownership, financing and disposition of Purchased Assets in accordance with its operating agreement and the applicable provisions of the Transaction Documents unless Documents; (iii) enter into any transaction, contract or agreement with any of its Affiliates, except upon terms and conditions commercially reasonable and substantially similar to those that would be available on an arm's-length basis with a Person other than such right Affiliate; (iv) incur any indebtedness or interest obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than to the extent permitted under the Transaction Documents; (v) make any loans or advances to any other Person, and shall not acquire obligations or securities of the Member or any Affiliate of any member (other than in connection with the acquisition of Purchased Assets) or any other Person; (vi) commingle its funds or other assets with those of any of its Affiliates or any other Person; (vii) hold itself out to be responsible for the debts or obligations of any other Person; (viii) seek or take, and will not encourage or otherwise permit the Member to seek or take, any of the following actions with respect to Seller: (a) dissolve, liquidate or wind up, in whole or in part; (b) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; (c) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the United States Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of such member or Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; (d) amend the certificate of formation or limited liability company agreement of Seller; (e) enter into any transaction with an Affiliate not in the ordinary course of Seller's business; or (f) permit or cause the Member to withdraw as the sole member of Seller; (ix) have any liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, ownership, financing and disposition of Purchased Asset hereunder;
Assets; (x) pledge its assets to secure the obligations of any other Person, other than a Buyer; (xi) guarantee or become obligated for the debts of any other Person; (xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiaryform, acquire or hold title any subsidiary, or own any equity interest in any other entity except interests that are part of the Purchased Assets (or assets which are proposed to become Purchased Assets) or that are acquired in any real propertyforeclosure on, or other realization of collateral from, any of the Purchased Assets; or (xiii) identify itself or any of its Affiliates as a division or part of the other.
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that which would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer;
(iiic) create, incur, assume incur or suffer permit to exist any Lien lien, encumbrance or security interest in or on the Purchased Assets, except as described in Section 6 and Section 24(b) of this Agreement;
(d) create, incur or permit to exist any lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than Collateral subject to the Liens and security interest granted by Seller pursuant to the Transaction DocumentsSection 6 and Section 24(b) of this Agreement;
(ive) intentionally omittedmodify or amend in any material respect, or terminate any of the organizational documents of Seller;
(vf) enter into any transaction change its name, organizational number, tax identification number, method of merger accounting, identity, structure or consolidation or amalgamationjurisdiction of organization, or liquidateor, wind up or dissolve itself without notifying Buyer within fifteen (or suffer any liquidation15) days thereafter, winding up or dissolution), or sell all or substantially all move the location of its assets principal place of business and chief executive office (except in connection with the sale or securitization of the Purchased Assets as defined in the ordinary course of Seller’s business after the repurchase thereof in accordance with this AgreementUCC);
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiig) consent or assent to any Significant Modification amendment or supplement to, or termination of, any Purchased Asset Document or other material agreement or instrument relating to a Purchased Asset, other than in accordance with Article 29a Permitted Purchased Asset Modification;
(ixh) permit the organizational documents or jurisdiction of organization of Seller enter into any forbearance agreements relating to be amended in any material respectPurchased Asset;
(xi) admit any additional members, partners, shareholders or other holders of ownership interests in Seller (“Seller Equity Holders”), unless such Seller Equity Holders are 100% owned (directly or indirectly) and Controlled by Guarantor, or (ii) permit Benefit Street Partners Realty Operating Partnership, L.P. or any other Seller Equity Holder to assign, transfer pledge or encumber all or any portion of its shareholder, membership, partnership or other ownership interest in Seller to any Person not 100% owned (directly or indirectly) Controlled by Guarantor.
(j) after the occurrence and during the continuance continuation of an (1) any Default or Event of DefaultDefault or (2) any uncured Margin Deficit, make any distributionDistribution, payment on account of, or set apart assets forfor any equity or ownership interest of Seller, or for a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereofto any equity or ownership interest of Seller, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xik) acquire contract, create, incur, assume or maintain permit to exist any right Investments, except to the extent arising under this Agreement or interest the Transaction Documents, or in connection with the performance of its obligations hereunder and thereunder, including with respect to any Eligible Assets that have been approved by Buyer for purchase hereunder in accordance with Section 3, or any repurchase of any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset required hereunder;
(xiil) use file (A) a financing statement in which the Seller is the debtor (as opposed to the secured party), except financing statements naming Buyer as secured party, or as approved by Buyer or (B) file an amendment or termination statement with respect to a financing statement in which the Seller is the debtor, except as approved by Buyer in each instance;
(i) enter into any part transaction of merger or consolidation or amalgamation, (ii) to the fullest extent permitted by law, liquidate, wind-up or dissolve itself (or suffer any liquidation, winding-up or dissolution), or discontinue its business, or (iii) engage in any other business other than the business of acquiring, originating or selling Eligible Assets;
(n) permit any amounts advanced hereunder, directly or indirectly: (a) to be lent, contributed or otherwise made available to fund any activity or business in any Designated Jurisdiction; (b) to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions; or (c) in any other manner that will result in any violation by any Person (including any Buyer) of any Sanctions;
(o) cause or permit Seller to, and Seller shall not establish, maintain, contribute to, or incur any liability (contingent or otherwise) with respect to, any Plan; (b) Seller shall not take any action that would cause the assets of Seller to constitute Plan Assets; (c) assuming that no portion of the assets used by Buyer in connection with the transactions contemplated under the Transaction Documents constitutes Plan Assets and/or the assets of any “employee benefit plan” (within the meaning of Section 3(3) of ERISA) that is subject to Title I of ERISA or a “plan” within the meaning of Section 4975 of the Code, Seller shall not take any action, or omit to take any action, if such action or inaction would cause any of the transactions contemplated under the Transaction Documents to be a “non-exempt prohibited transaction” under Section 4975(c)(1)(A), (B), (C) or (D) of the Code or Section 406(a) of ERISA and would subject Buyer to any tax, penalty, damages or any other claim or relief under the Code or ERISA;
(p) amend, modify, supplement or terminate the Mortgage Loan Purchase Documents or waive any term or provision thereof;
(q) enter into any acknowledgement or agreement that gives any other Person or entity (except Buyer) control over, or any other security interest, lien or title in, the Cash Management Account; or
(r) Seller will not request any Transaction, and shall not use, and the Seller shall ensure that the Seller and its manager, officers, employees and agents acting or benefiting in any capacity in connection with the Transactions shall not use, the proceeds of any Transaction hereunder for any purpose which violates(i) in furtherance of an offer, payment, promise to pay, or would be inconsistent with, the provisions of Regulation T, U or X authorization of the Board payment or giving of Governors of the Federal Reserve System; and
(xiii) directlymoney, or through a Subsidiaryanything else of value, acquire or hold title to any real propertyPerson in violation in any material respect of any Anti-Corruption Laws or (ii) in any manner that would result in the violation in any material respect of any applicable Sanctions.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (Benefit Street Partners Realty Trust, Inc.)
Negative Covenants of Seller. On and Except as of otherwise expressly provided herein or as expressly consented to or requested in writing by Buyer, prior to the date hereof and at all times while this Agreement or the Transaction hereunder is in effectClosing Date, Seller shall not, and Parent shall cause Seller not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionto:
(ia) subject enter into, amend, modify or terminate any employment, severance or collective bargaining agreement or other agreement or arrangement with any Transferred Employees or their representative, or grant any increase in salary or bonus or otherwise increase the compensation payable to Seller’s right to repurchase any Purchased Asset pursuant employee, consultant, advisor or agent employed by or rendering services to the terms of this AgreementBusiness, take any action that would directly except wage or indirectly impair salary increases as required by preexisting contracts or adversely affect Purchaser’s title compensation policies which are consistent with past practice to any Purchased Asset or other Purchased Itemthe extent described on Schedule 4.4(a);
(iib) at enter into, amend or modify any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose ofSeller Employee Benefit Plan, or pledge other employee benefit plan or hypothecatearrangement associated with such plans, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(iv) intentionally omitted;
(v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after consistent with past practice;
(c) sell, lease, license or otherwise dispose of any interest in any of the repurchase thereof Purchased Assets except Inventory in accordance with the ordinary course of business, or permit, allow or suffer any of the Purchased Assets to be subjected to any Liens other than any which shall be in existence as of the date of this AgreementAgreement (all of which shall be released, satisfied or otherwise discharged as of the Closing Date, other than the Permitted Liens);
(vid) permit a Change engage in any promotional sales or discount or other activity that has or would reasonably be expected to have the primary effect of Controlaccelerating to pre-Closing periods sales to customers that would otherwise be expected to occur in post-Closing periods except in the ordinary course of business consistent with past practice;
(viie) intentionally omittedaccelerate the collection of Accounts Receivable or delay the payment of payables or other accrued liabilities as compared to the Seller’s past practice;
(viiif) consent decrease the price of any of its products or assent to services, other than decreases in the ordinary course of business consistent with past practice;
(g) terminate or modify any Significant Modification government license, permit or other authorization, other than in accordance the ordinary course of business consistent with Article 29past practice;
(ixh) permit enter into any new, or amend or terminate any existing, material contracts, agreements or commitments other than in the organizational documents or jurisdiction ordinary course of organization of Seller to be amended in any material respectbusiness, consistent with past practice;
(xi) after institute any material change in the occurrence and during conduct of the continuance of an Event of Default, make any distribution, payment on account ofBusiness, or set apart assets for, a sinking or other analogous fund for the any change in its method of purchase, redemptionsale, defeasancemanagement, retirement marketing, operation, accounting, collection or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;payment; or
(xij) acquire reduce or maintain delay any right budgeted or interest planned capital expenditures except in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests ordinary course of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly, or through a Subsidiary, acquire or hold title to any real propertybusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sterling Construction Co Inc)
Negative Covenants of Seller. On and as of the date hereof and at all times while each Purchase Date and until this Agreement or the Transaction hereunder is no longer in effectforce with respect to any Transaction, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any Purchased Asset or other Purchased Item of them) to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any Purchased Asset or other Purchased Item of them) with any Person other than PurchaserBuyer, unless and until such Purchased Asset is repurchased by Seller in accordance with this Agreement;
(iiic) modify in any material respect any Servicing Agreements to which it is a party, without the consent of Buyer in its discretion, not to be unreasonably withheld, conditioned or delayed;
(d) create, incur, assume incur or suffer permit to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other CollateralCollateral or Purchased Items, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to Article 6 of this Agreement, the Transaction DocumentsSecurity Deed and the Lien granted by Sponsor under the Pledge and Security Agreement or unless and until such Purchased Asset relating to such Purchased Items or Collateral is repurchased by Seller in accordance with this Agreement;
(ive) intentionally omitted;
(v) except as otherwise expressly provided herein, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except without the consent of Buyer in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement)its sole discretion;
(vi) permit a Change of Control;
(vii) intentionally omitted;
(viiif) consent or assent to any Significant Modification amendment or supplement to, or termination of, any note, loan agreement, mortgage or guarantee relating to the Purchased Assets or other agreement or instrument relating to the Purchased Assets other than in accordance with Article 297(e);
(ixg) permit the organizational documents or jurisdiction of organization organizational structure of Seller to be amended without the prior written consent of Buyer, not to be unreasonably withheld, conditioned or delayed, other than special purpose entity provisions, for which such consent shall be in any material respectBuyer’s sole discretion;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xih) acquire or maintain any right or interest in any Purchased Asset or any Underlying Mortgaged Property that is senior to, junior to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless such right or interest in becomes a Purchased Asset hereunder;
(xiii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiij) directly, or through a Subsidiary, acquire or hold title enter into any Hedging Transaction with respect to any real propertyPurchased Asset with any entity that is not an Affiliated Hedge Counterparty or a Qualified Hedge Counterparty; or
(k) incur any Indebtedness other than pursuant to, and in accordance with, this Agreement and the other Transaction Documents.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Blackstone Mortgage Trust, Inc.)
Negative Covenants of Seller. On and as of the date hereof and at all times while this Agreement or the any Transaction hereunder is in effect, Seller shall not not, without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretionBuyer:
(ia) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, knowingly take any action that would directly or indirectly impair or adversely affect PurchaserBuyer’s title to any the Purchased Asset or other Purchased ItemAssets;
(iib) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item Assets to any Person other than PurchaserBuyer, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item Assets with any Person other than PurchaserBuyer;
(iiic) create, incur, assume or suffer to exist any Lien Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents;
(ivd) intentionally omittedcreate, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) if the same would cause Seller to violate the covenants contained in Article 12;
(ve) subject to Article 27, permit (through the giving of consent or a waiver, failure to object or otherwise) any Mortgaged Property or Mortgagor, in each case, relating to any Purchased Asset, to create, incur, assume or suffer to exist any Liens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt (in each case, excluding Permitted Encumbrances against the related Mortgaged Property and except to the extent that any such Liens or Indebtedness are otherwise created, incurred, assumed or permitted in accordance with the Purchased Asset Documents);
(f) consent or assent to any Significant Modification relating to any Purchased Asset or other agreement or instrument relating to any Purchased Asset other than in accordance with Article 27 and the Servicing Agreement and/or Servicer Letter (as applicable);
(g) permit the organizational documents or organizational structure of Seller to be amended in any material respect; provided, however that the foregoing shall not prohibit any modifications to Seller’s organizational documents which are administrative in nature (other than with respect to the special purpose entity provisions) or solely reflect new direct or indirect ownership so long as no Change of Control has occurred;
(h) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement);
(vii) permit suffer a Change of ControlControl that Buyer has not consented to or enter into (or agree to enter into) any Division/Series Transaction;
(vii) intentionally omitted;
(viii) consent or assent to any Significant Modification other than in accordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(xj) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller;
(xik) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property relating to any Purchased Asset that is senior to, to or pari passu with, with the rights and interests of Purchaser Buyer therein under this Agreement and the other Transaction Documents unless other than (x) in connection with the addition of such right other rights or interests as Collateral hereunder, or (y) a pari passu companion note or a pari passu participation interest in related to a Senior Interest that is a Purchased Asset hereunderwhich note or interest Seller holds and promptly transfers to an Affiliate or to a securitization transaction;
(xiil) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and;
(xiiim) directly, or through a Subsidiary, acquire or hold title to any real property; or
(n) make any election or otherwise take any action that would cause Seller to be treated as an association taxable as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
