Negative Covenants of the Obligors. Each Obligor covenants and agrees with the Lender Parties that, until all Loans and other Obligations have been paid in full in cash and the Commitments have terminated or expired, it shall not, and shall not permit any Subsidiary to: (a) other than in accordance with Section 7.02(k), take any action that would directly or indirectly materially impair or materially adversely affect its title to, or the value of, the Collateral; provided that (i) actions in accordance with the Credit and Collection Policies, (ii) modifications implemented in a good faith attempt to increase the recovery on, or collectibility of, delinquent or distressed Collateral or (iii) Collateral Dispositions otherwise permitted hereunder shall not constitute a violation of this Section 7.02(a); (b) engage in any line of business activity other than the businesses in substantially the same fields of enterprise are conducted on the date hereof; (c) amend, modify or waive any term or condition of any Facility Document, or consent to any amendment, modification or waiver of any term or condition of any Facility Document, without the prior written consent of the requisite Lenders (as specified in Section 13.01); (d) change its name, organizational identification number, organizational structure or its state of incorporation, organization or formation unless it shall have given the Lender Agent at least thirty (30) days’ prior written notice thereof and unless, prior to any such change, it shall have filed, or caused to be filed, such financing statements or amendments and taken such further action as any Lender or the Lender Agent determines may be reasonably necessary to continue the perfection and priority of the First Priority Collateral Agent’s interest (on behalf of the Lender Parties) in the Collateral; (e) [Reserved]; (f) at any time create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness; (g) directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment either (i) (A) no Default shall have occurred and be continuing or will occur as a consequence thereof and (B) after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount expended or declared for all Restricted Payments made on or after the Closing Date (excluding Restricted Payments described in clauses (b), (c), (d), (e), (f) and (g) of the definition of Permitted Restricted Payments), shall not exceed the Restricted Payment Maximum Amount or (ii) such Restricted Payment is a Permitted Restricted Payment; (h) at any time create or suffer to exist any Lien (other than any Permitted Liens) on any of its assets or property (whether now owned or hereafter acquired) which is Collateral; (i) if, on any Business Day, the aggregate amount of Consolidated Liquidity shall be less than $750,000,000, ResCap shall within two (2) Business Days (if such Business Day is a Remittance Date) or (in all other cases) one (1) Business Day, cause the aggregate amount of Consolidated Liquidity to be not less than $750,000,000; provided that, at no time shall ResCap permit the aggregate amount of Consolidated Liquidity to be less than $450,000,000; provided further that, at no time shall ResCap permit the aggregate amount of unrestricted and unencumbered (x) cash (consisting solely of United States dollars held at all times in the United States by ResCap on a consolidated basis (excluding GMAC Bank)), and (y) Cash Equivalents held by ResCap on a consolidated basis (excluding GMAC Bank) (consisting solely of (i) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, and (ii) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clause (i)) to be less than $250,000,000. (j) permit, as of the last Business Day of each fiscal month of ResCap, the Consolidated Tangible Net Worth of ResCap to be less than $250,000,000; (k) consummate a Collateral Disposition unless (i) it (or the applicable Subsidiary, as the case may be) receives consideration in the form of Permitted Consideration, and (ii) at the time of the Collateral Disposition, the Permitted Consideration received in such Collateral Disposition by it or such Subsidiary is at least substantially equivalent to the Fair Value of the Primary Collateral or Supporting Assets issued or sold or otherwise disposed of; provided that this clause (k) will not apply to MHF Assets; (l) except for Affiliate Transactions engaged by or with any Excluded Subsidiary, directly or indirectly, engage in any Affiliate Transaction which is not a Permitted Affiliate Transaction unless (i) such Affiliate Transaction is on terms that are not materially less favorable to it or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by it or such Subsidiary with an unaffiliated party (provided that any transactions between Obligors shall be in compliance with the corporate governance policies of each such Obligor), (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $250,000,000, it delivers to the Lender Agent a resolution adopted in good faith by the majority of its Board of Directors approving such Affiliate Transaction and set forth in an officers’ certificate certifying that such Affiliate Transaction complies with clause (i) above, and (iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions (other than Servicing Advance Factoring Sales) involving aggregate consideration in excess of $500,000,000, it obtains and delivers to the Lender Agent a written opinion of a nationally recognized independent third-party investment banking, accounting or appraisal firm acceptable to the Lender Agent stating that the transaction is fair to it or such Subsidiary, as the case may be, from a financial point of view; (m) amend or otherwise modify its organizational documents if the result would have a material adverse effect on the Lender Parties (including on the rights or remedies of the Lender Parties); (n) amend or otherwise modify the 2010 Indenture or the 2015 Indenture if the result of such amendment or modification could reasonably be expected to result in a Material Adverse Effect or materially adversely effect the Lender Parties or their rights, priority and/or remedies under the Facility Documents; (o) enter into any agreement (other than a Facility Document) prohibiting, restricting or otherwise limiting (i) the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired (other than limits arising from the 2010 Indenture or the 0000 Xxxxxxxxx or agreements governing Permitted Funding Indebtedness and Permitted Refinancing Indebtedness restricting Liens on any collateral covered by Permitted Liens arising under such agreements), (ii) the ability of any Obligor to amend or otherwise modify any Facility Document, or (iii) the ability of any Obligor or other Significant Subsidiary to make any payments, directly or indirectly, to the Borrowers or any Guarantor, including by way of dividends, distributions, advances, repayments of loans, reimbursements of management and other intercompany charges, expenses and accruals or other returns on investments (including, without limitation, entering into any agreement by any Obligor or other Significant Subsidiary that requires distributions otherwise payable to the Borrowers to be escrowed or to be subject to a sinking fund or other similar restriction or to be paid to another Person); (p) permit ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap to merge or consolidate with any other corporation or other entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to any Person, or permit any Subsidiary of such foregoing entities to do so, unless (i) such entity is the survivor or such entity’s successor is a person organized and existing under the laws of the United States or a state thereof and expressly assumes all of such entity’s obligations under this Agreement and the other Facility Documents; (ii) immediately after giving effect to such consolidation, merger, sale or conveyance, no Default shall have occurred and be continuing; and (iii) each Guarantor confirms that each of its guarantees with respect to the Facility Documents shall remain in full force and effect; provided that none of ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap shall merge or consolidate with GMAC Bank such that GMAC Bank is the surviving entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to GMAC Bank, or permit any of their Subsidiaries to do so; (q) permit ResCap to directly own any assets other than (i) Equity Interests of the other Obligors, (ii) assets in respect of hedging arrangements, (iii) so long as no Event of Default has occurred and is continuing, cash and cash equivalents and other immaterial assets in the ordinary course of business consistent with past practice, (iv) assets which are subject to a Lien as Collateral under the Security Documents and (v) the Exempted Cash Reserve Account; (r) use the Net Cash Proceeds from any Servicing Advance Factoring Sale for any purpose other than (i) during the Deferral Period, the funding of servicing advances and (ii) the purchase of Eligible Assets consisting of Servicing T&I Advances, Servicing P&I Advances or Servicing Corporate Advances which become Primary Collateral; or (s) permit the Servicing Advance Exception Funds on any day to exceed the Servicing Advance Exception Limit.
Appears in 1 contract
Negative Covenants of the Obligors. Each Obligor covenants and agrees with the Lender Parties that, until all Loans and other Obligations have been paid in full in cash and the Commitments have terminated or expired, it shall not, and shall not permit any Subsidiary to:
(a) other than in accordance with Section 7.02(k), take any action that would directly or indirectly materially impair or materially adversely affect its title to, or the value of, the Collateral; provided that (i) actions in accordance with the Credit and Collection Policies, (ii) modifications implemented in a good faith attempt to increase the recovery on, or collectibility of, delinquent or distressed Collateral or (iii) Collateral Dispositions otherwise permitted hereunder that comply with Section 7.02(k) shall not constitute a violation of this Section 7.02(a);; 25 Credit Agreement
(b) engage in any line of business activity other than the businesses in substantially the same fields of enterprise as are conducted on the date hereofhereof by any Obligor or Subsidiary of an Obligor;
(c) amend, modify or waive any term or condition of any Facility Document, or consent to any amendment, modification or waiver of any term or condition of any Facility Document, without the prior written consent of the requisite Lenders (as specified in Section 13.01);
(d) change its name, organizational identification number, organizational structure or its state of incorporation, organization or formation unless it shall have given the Lender Credit Agent at least thirty (30) days’ prior written notice thereof and unless, prior to any such change, it shall have filed, or caused to be filed, such financing statements or amendments and taken such further action as any Lender or the Lender Credit Agent determines may be reasonably necessary to continue the perfection and priority of the First Priority applicable Collateral AgentHolder’s interest (on behalf of the Lender Parties) in the Collateral, provided however that this Section 7.02(d) shall only apply to Obligors and issuers of notes, securities or other interests included in the Schedules to the Fourth Security Agreement;
(e) [Reserved];
(f) at any time create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness;
; it being understood, for the avoidance of doubt, that (ga) directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect Guarantors may incur unsecured intercompany Indebtedness to the proposed Restricted Payment either (i) (A) no Default shall have occurred and be continuing or will occur Borrowers as a consequence thereof and (B) after giving effect to such Restricted Payment on a pro forma basis, long as any funds advanced by the aggregate amount expended or declared for all Restricted Payments made on or after the Closing Date (excluding Restricted Payments described in clauses (b), (c), (d), (e), (f) and (g) of the definition of Permitted Restricted Payments), shall not exceed the Restricted Payment Maximum Amount or (ii) such Restricted Payment is a Permitted Restricted Payment;
(h) at any time create or suffer to exist any Lien (other than any Permitted Liens) on any of its assets or property (whether now owned or hereafter acquired) which is Collateral;
(i) if, on any Business Day, the aggregate amount of Consolidated Liquidity shall be less than $750,000,000, ResCap shall within two (2) Business Days (if such Business Day is a Remittance Date) or (in all other cases) one (1) Business Day, cause the aggregate amount of Consolidated Liquidity to be not less than $750,000,000; provided that, at no time shall ResCap permit the aggregate amount of Consolidated Liquidity to be less than $450,000,000; provided further that, at no time shall ResCap permit the aggregate amount of unrestricted and unencumbered Borrowers are (x) cash (consisting solely of United States dollars held at all times to the extent they constitute Collections, deposited and maintained in the United States by ResCap on a consolidated basis (excluding GMAC Bank)), accordance with Article IV and (y) Cash Equivalents held by ResCap on a consolidated basis to the extent they constitute proceeds of Loans hereunder, subject to Section 7.01(k) and (excluding GMAC Bankb) (consisting solely of (i) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed or insured Borrowers may incur unsecured intercompany Indebtedness to the GSAP Preferred Share SPVs as long as any funds advanced by the United States Government or any agency thereof, GSAP Preferred Share SPVs are deposited and (ii) shares of money market mutual or similar funds which invest exclusively maintained in assets satisfying the requirements of clause (i)) to be less than $250,000,000accordance with Article IV.
(jf) permitpermit any GSAP Preferred Share SPV to at any time create, as of the last Business Day of each fiscal month of ResCapissue, the Consolidated Tangible Net Worth of ResCap to be less than $250,000,000;
incur (k) consummate a Collateral Disposition unless (i) it (by conversion, exchange or the applicable Subsidiaryotherwise), as the case may be) receives consideration in the form of Permitted Considerationassume, and (ii) at the time of the Collateral Disposition, the Permitted Consideration received in such Collateral Disposition by it or such Subsidiary is at least substantially equivalent to the Fair Value of the Primary Collateral or Supporting Assets issued or sold guarantee or otherwise disposed of; provided that this clause (k) will not apply to MHF Assets;
(l) except for Affiliate Transactions engaged by or with any Excluded Subsidiary, directly or indirectly, engage in any Affiliate Transaction which is not a Permitted Affiliate Transaction unless (i) such Affiliate Transaction is on terms that are not materially less favorable to it or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by it or such Subsidiary with an unaffiliated party (provided that any transactions between Obligors shall be in compliance with the corporate governance policies of each such Obligor), (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $250,000,000, it delivers to the Lender Agent a resolution adopted in good faith by the majority of its Board of Directors approving such Affiliate Transaction and set forth in an officers’ certificate certifying that such Affiliate Transaction complies with clause (i) above, and (iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions (other than Servicing Advance Factoring Sales) involving aggregate consideration in excess of $500,000,000, it obtains and delivers to the Lender Agent a written opinion of a nationally recognized independent third-party investment banking, accounting or appraisal firm acceptable to the Lender Agent stating that the transaction is fair to it or such Subsidiary, as the case may be, from a financial point of view;
(m) amend or otherwise modify its organizational documents if the result would have a material adverse effect on the Lender Parties (including on the rights or remedies of the Lender Parties);
(n) amend or otherwise modify the 2010 Indenture or the 2015 Indenture if the result of such amendment or modification could reasonably be expected to result in a Material Adverse Effect or materially adversely effect the Lender Parties or their rights, priority and/or remedies under the Facility Documents;
(o) enter into any agreement (other than a Facility Document) prohibiting, restricting or otherwise limiting (i) the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired (other than limits arising from the 2010 Indenture or the 0000 Xxxxxxxxx or agreements governing Permitted Funding Indebtedness and Permitted Refinancing Indebtedness restricting Liens on any collateral covered by Permitted Liens arising under such agreements), (ii) the ability of any Obligor to amend or otherwise modify any Facility Document, or (iii) the ability of any Obligor or other Significant Subsidiary to make any payments, directly or indirectly, to the Borrowers or any Guarantor, including by way of dividends, distributions, advances, repayments of loans, reimbursements of management and other intercompany charges, expenses and accruals or other returns on investments (including, without limitation, entering into any agreement by any Obligor or other Significant Subsidiary that requires distributions otherwise payable to the Borrowers to be escrowed or to be subject to a sinking fund or other similar restriction or to be paid to another Person);
(p) permit ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap to merge or consolidate with any other corporation or other entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to any Person, or permit any Subsidiary of such foregoing entities to do so, unless (i) such entity is the survivor or such entity’s successor is a person organized and existing under the laws of the United States or a state thereof and expressly assumes all of such entity’s obligations under this Agreement and the other Facility Documents; (ii) immediately after giving effect to such consolidation, merger, sale or conveyance, no Default shall have occurred and be continuing; and (iii) each Guarantor confirms that each of its guarantees with respect to the Facility Documents shall remain in full force and effect; provided that none of ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap shall merge or consolidate with GMAC Bank such that GMAC Bank is the surviving entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to GMAC Bank, or permit any of their Subsidiaries to do so;
(q) permit ResCap to directly own any assets other than (i) Equity Interests of the other Obligors, (ii) assets become liable in respect of hedging arrangements, any Indebtedness (iii) so long as no Event of Default has occurred and is continuing, cash and cash equivalents and other immaterial assets in the ordinary course of business consistent with past practice, (iv) assets which are subject to a Lien as Collateral under the Security Documents and (v) the Exempted Cash Reserve Accountincluding Acquired Indebtedness);
(r) use the Net Cash Proceeds from any Servicing Advance Factoring Sale for any purpose other than (i) during the Deferral Period, the funding of servicing advances and (ii) the purchase of Eligible Assets consisting of Servicing T&I Advances, Servicing P&I Advances or Servicing Corporate Advances which become Primary Collateral; or
(s) permit the Servicing Advance Exception Funds on any day to exceed the Servicing Advance Exception Limit.
Appears in 1 contract
Negative Covenants of the Obligors. Each Obligor covenants and agrees with the Lender Parties that, until all Loans and other Obligations have been paid in full in cash and the Commitments have terminated or expired, it shall not, and shall not permit any Subsidiary to:
(a) other than in accordance with Section 7.02(k), take any action that would directly or indirectly materially impair or materially adversely affect its title to, or the value of, the Collateral; provided that (i) actions in accordance with the Credit and Collection Policies, (ii) modifications implemented in a good faith attempt to increase the recovery on, or collectibility of, delinquent or distressed Collateral or (iii) Collateral Dispositions otherwise permitted hereunder that comply with Section 7.02(k) shall not constitute a violation of this Section 7.02(a);
(b) engage in any line of business activity other than the businesses in substantially the same fields of enterprise are conducted on the date hereof;
(c) amend, modify or waive any term or condition of any Facility Document, or consent to any amendment, modification or waiver of any term or condition of any Facility Document, without the prior written consent of the requisite Lenders (as specified in Section 13.01);
(d) change its name, organizational identification number, organizational structure or its state of incorporation, organization or formation unless it shall have given the Lender Agent at least thirty (30) days’ prior written notice thereof and unless, prior to any such change, it shall have filed, or caused to be filed, such financing statements or amendments and taken such further action as any Lender or the Lender Agent determines may be reasonably necessary to continue the perfection and priority of the First Priority Collateral Lender Agent’s interest (on behalf of the Lender Parties) in the Collateral;
(e) [Reserved];
(f) at any time create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness; it being understood, for the avoidance of doubt, that (a) the Guarantors may incur unsecured intercompany Indebtedness to the Borrowers as long as any funds advanced by the Borrowers are (x) to the extent they constitute Collections, deposited and maintained in accordance with Article IV and (y) to the extent they constitute proceeds of Loans hereunder, subject to Section 7.01(k) and (b) the Borrowers may incur unsecured intercompany Indebtedness to the GSAP Preferred Share SPVs as long as any funds advanced by the GSAP Preferred Share SPVs are deposited and maintained in accordance with Article IV.
(f) permit any GSAP Preferred Share SPV to at any time create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of any Indebtedness (including Acquired Indebtedness);
(g) (1) directly or indirectly, indirectly make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment Payment, either (i) (A) no Default shall have occurred and be continuing or will occur as a consequence thereof and (B) after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount expended or declared for all Restricted Payments made on or after the Closing Date (excluding Restricted Payments described in clauses (b), (c), (d), (e), (f) and (gf) of the definition of Permitted Restricted Payments), ) shall not exceed the Restricted Payment Maximum Amount or (ii) such Restricted Payment is a Permitted Restricted Payment; or (2) permit any GSAP Preferred Share SPV to (i) make any dividend or distribution of the GSAP Class A-1 Preference Shares or the GSAP Class A-2 Preference Shares without the written consent of the Lender Agent, (ii) make any other payments or distributions with respect to dividends, distributions or other payments by a Borrower with respect to its equity interests, or any repurchase by a GSAP Preferred Share SPV of any outstanding equity interest issued by a GSAP Preferred Share SPV without the written consent of the Lender Agent unless no Default shall have occurred and be continuing or will occur as a consequence thereof or (iii) other than as contemplated by Section 7.02(e), act as lender or guarantor with respect to any Indebtedness incurred by the Borrowers, the Guarantors or any of their Subsidiaries or Affiliates without the written consent of the Lender Agent;
(h) at any time create or suffer to exist any Lien (other than any Permitted Liens) on any of its assets or property (whether now owned or hereafter acquired) which is are Collateral or permit any GSAP Preferred Share SPV to at any time create or suffer to exist any Lien (other than a Lien created under the Security Agreement by the Indebtedness referenced in Section 7.02(f)) on any of its assets or property (whether now owned or hereafter acquired) which are Supporting Assets for Collateral;
(i) if, on any Business Day, the aggregate amount of Consolidated Liquidity shall be less than $750,000,000, ResCap shall within two (2) Business Days (if such Business Day is a Remittance Date) or (in all other cases) one (1) Business Day, cause the aggregate amount of Consolidated Liquidity to be not less than $750,000,000; provided that, at no time shall ResCap permit the aggregate amount of Consolidated Liquidity to be less than $450,000,000; provided further that, at no time shall ResCap permit the aggregate amount of unrestricted and unencumbered (x) cash (consisting solely of United States dollars held at all times in the United States by ResCap on a consolidated basis (excluding GMAC Bank)), and (y) Cash Equivalents held by ResCap on a consolidated basis (excluding GMAC Bank) (consisting solely of (i) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, and (ii) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clause (i)) to be less than $250,000,000.[Reserved]
(j) permit, as of the last Business Day of each fiscal month of ResCap, the Consolidated Tangible Net Worth of ResCap to be less than $250,000,000;
(k) consummate a Collateral Disposition unless (i) it the proceeds of such Collateral Disposition are deposited as Collections in accordance with Article IV, (ii) for any Collateral Disposition other than (x) the sale of whole Mortgage Loans constituting Supporting Assets for the Flume No. 8 Notes in the ordinary course of business or (y) the sale of Assets constituting Supporting Assets for Eligible Warehouse Loans in accordance with the First Savings Warehouse Agreement or the applicable SubsidiaryProvident Warehouse Agreement (as applicable) and the related other Warehouse Facility Documents, as the case may be) receives consideration in the form of Permitted ConsiderationLender Agent shall have given its prior written consent to such Collateral Disposition, and (iiiii) at for a Collateral Disposition of whole Mortgage Loans securing the time Flume No. 8 Notes in the ordinary course of the Collateral Dispositionbusiness, the Permitted Consideration received proceeds of such Mortgage Loans deposited as provided in such Collateral Disposition by it or such Subsidiary is at least substantially equivalent to the Fair Value of the Primary Collateral or Supporting Assets issued or sold or otherwise disposed of; provided that this clause (ki) will not apply to MHF Assets;above represents the fair market value of such Mortgage Loans.
(l) except for Affiliate Transactions engaged by or with any Excluded Subsidiary, directly or indirectly, engage in any Affiliate Transaction which is not a Permitted Affiliate Transaction unless (i) such Affiliate Transaction is on terms that are not materially less favorable to it or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by it or such Subsidiary with an unaffiliated party (provided that any transactions between Obligors shall be in compliance with the corporate governance policies of each such Obligor), (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $250,000,000, it delivers to the Lender Agent a resolution adopted in good faith by the majority of its Board of Directors approving such Affiliate Transaction and set forth in an officers’ certificate certifying that such Affiliate Transaction complies with clause (i) above, and (iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions (other than Servicing Advance Factoring Sales) involving aggregate consideration in excess of $500,000,000, it obtains and delivers to the Lender Agent a written opinion of a nationally recognized independent third-party investment banking, accounting or appraisal firm acceptable to the Lender Agent stating that the transaction is fair to it or such Subsidiary, as the case may be, from a financial point of view;
(m) amend or otherwise modify its organizational documents if the result would have a material adverse effect on the Lender Parties (including on the rights or remedies of the Lender Parties);
(n) amend or otherwise modify the 2010 Indenture or the 2015 Indenture if the result of such amendment or modification could reasonably be expected to result in a Material Adverse Effect or materially adversely effect the Lender Parties or their rights, priority and/or remedies under the Facility Documents;
(o) enter into any agreement (other than a Facility Document) prohibiting, restricting or otherwise limiting (i) the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired (other than limits permitted or arising from the 2010 Indenture or the 0000 Xxxxxxxxx or under Senior Debt Documents, including agreements governing Permitted Funding Indebtedness and Permitted Refinancing Indebtedness restricting Liens on any collateral covered by Permitted Liens arising under such agreements), (ii) the ability of any Obligor to amend or otherwise modify any Facility Document, or (iii) the ability of any Obligor or other Significant Subsidiary to make any payments, directly or indirectly, to the Borrowers or any Guarantor, including by way of dividends, distributions, advances, repayments of loans, reimbursements of management and other intercompany charges, expenses and accruals or other returns on investments (including, without limitation, entering into any agreement by any Obligor or other Significant Subsidiary that requires distributions otherwise payable to the Borrowers to be escrowed or to be subject to a sinking fund or other similar restriction or to be paid to another Person);
(po) permit ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap to merge or consolidate with any other corporation or other entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to any Person, or permit any Subsidiary of such foregoing entities to do so, unless (i) such entity is the survivor or such entity’s successor is a person organized and existing under the laws of the United States or a state thereof and expressly assumes all of such entity’s obligations under this Agreement and the other Facility Documents; (ii) immediately after giving effect to such consolidation, merger, sale or conveyance, no Default shall have occurred and be continuing; and (iii) each Guarantor confirms that each of its guarantees with respect to the Facility Documents shall remain in full force and effect; provided that none of ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap shall merge or consolidate with GMAC Bank such that GMAC Bank is the surviving entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to GMAC Bank, or permit any of their Subsidiaries to do so;
(qp) permit ResCap to directly own any assets other than (i) Equity Interests of the other Obligors, (ii) assets in respect of hedging arrangements, (iii) so long as no Event of Default has occurred and is continuing, cash and cash equivalents and other immaterial assets in the ordinary course of business consistent with past practice, (iv) assets which are subject to a Lien as Collateral under the Security Documents and (v) the Exempted Cash Reserve AccountAccount (as defined in the Senior Loan Facility);
(q) without the prior written consent of the Lender Agent, terminate the administrator under the Flume. No. 8 Administration Agreement, provided, however, that this Section shall not apply to automatic termination of the administrator under such agreement;
(r) use agree to amend, modify or waive any provision of any Underlying Document or the Net Cash Proceeds from any Servicing Advance Factoring Sale for any purpose other than (i) during organizational documents of the Deferral Period, GSAP Preferred Share SPVs without the funding written consent of servicing advances and (ii) the purchase of Eligible Assets consisting of Servicing T&I Advances, Servicing P&I Advances or Servicing Corporate Advances which become Primary Collateral; orLender Agent;
(s) permit agree to terminate any Underlying Document without the Servicing Advance Exception Funds on any day to exceed written consent of the Servicing Advance Exception LimitLender Agent.
Appears in 1 contract
Negative Covenants of the Obligors. Each Obligor covenants and agrees with the Lender Parties that, until all Loans and other Obligations have been paid in full in cash and the Commitments have terminated or expired, it shall not, and shall not permit any Subsidiary to:
(a) other than in accordance with Section 7.02(k), take any action that would directly or indirectly materially impair or materially adversely affect its title to, or the value of, the CollateralCollateral or Supporting Assets in a manner that could reasonably be expected to give rise to a Material Adverse Effect; provided that (i) actions in accordance with the Credit and Collection Policies, (ii) modifications implemented in a good faith attempt to increase the recovery on, or collectibility of, delinquent or distressed Collateral or Supporting Assets, or (iii) Collateral Dispositions or Permitted Actions otherwise permitted hereunder shall not constitute a violation of this Section 7.02(a);this
(b) engage in any line of business activity other than the businesses in substantially the same fields of enterprise as are conducted on the date hereofhereof by any 5254878 08048307 27 Line of Credit Agreement Obligor or Subsidiary of an Obligor; provided, however, if an entity is substantially dormant, then such entity may engage in any line of business activity other than the businesses in substantially the same fields of enterprise as are conducted on the date hereof by any Obligor or Subsidiary of an Obligor;
(c) amend, modify or waive any term or condition of any Facility Document, or consent to any amendment, modification or waiver of any term or condition of any Facility Document, without the prior written consent of the requisite Lenders (as specified in Section 13.01);
(d) change its name, organizational identification number, organizational structure or its state of incorporation, organization or formation unless it shall have given the Lender Agent at least thirty (30) days’ prior written notice thereof and unless, prior to any such change, it shall have filed, or caused to be filed, such financing statements or amendments and taken such further action as any Lender or the Lender Agent determines may be reasonably necessary to continue the perfection and priority of the First Priority applicable Collateral AgentHolder’s interest (on behalf of the Lender Parties) in the Collateral, provided however that this Section 7.02(d) shall only apply to Obligors and issuers of notes, securities or other interests included in the Schedules to the Security Agreement;
(e) [Reserved];
(f) at any time create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness.
(f) permit any Restricted Entity to at any time create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of any Indebtedness (other than Excluded Debt and Permitted Indebtedness described in clause (c) or (h) of the definition of Permitted Indebtedness);
(g) (1) directly or indirectly, indirectly make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment Payment, either (i) (A) no Default shall have occurred and be continuing or will occur as a consequence thereof and (B) after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount expended or declared for all Restricted Payments made on or after the Closing Date (excluding Restricted Payments described in clauses (b), (c), (d), (e), (f) and (g) of the definition of Permitted Restricted Payments), ) shall not exceed the Restricted Payment Maximum Amount or (ii) such Restricted Payment is a Permitted Restricted Payment;; or (2) without the written consent of the Lender Agent, permit any Restricted Entity to (i) make any dividend or distribution of the RE Assets, except for Ordinary RE Transactions, without the written consent of the Lender Agent, (ii) repurchase any outstanding equity interest issued by a Restricted Entity or (iii) other than as contemplated by Section 7.02(f), Article XI or the Security Documents, act as guarantor or surety with respect to any Indebtedness incurred by the Borrowers, the Guarantors or any of their Subsidiaries or Affiliates; 5254878 08048307 28 Line of Credit Agreement
(h) at any time create or suffer to exist any Lien (other than any Permitted Liens) on any of its assets or property (whether now owned or hereafter acquired) which is Collateralare Collateral or Supporting Assets; or permit any Restricted Entity to at any time create or suffer to exist any Lien on any of its assets or property (whether now owned or hereafter acquired) which are Supporting Assets or RE Assets other than Permitted Liens; provided that, in the case of a ResCap Subsidiary other than a BCG Joint Venture, such Permitted Liens shall be in favor of GMAC or described in clause (b) through (f), (i), (j), (k), (l), (m) or (o) of the definition of Permitted Lien;
(i) if, on any Business Day, the aggregate amount of Consolidated Liquidity shall be less than $750,000,000, ResCap shall within two (2) Business Days (if such Business Day is a Remittance Date) or (in all other cases) one (1) Business Day, cause the aggregate amount of Consolidated Liquidity to be not less than $750,000,000; provided that, at no time shall ResCap permit the aggregate amount of Consolidated Liquidity to be less than $450,000,000; provided further that, at no time shall ResCap permit the aggregate amount of unrestricted and unencumbered (x) cash (consisting solely of United States dollars held at all times in the United States by ResCap on a consolidated basis (excluding GMAC Bank))basis, and (y) Cash Equivalents held by ResCap on a consolidated basis (excluding GMAC Bank) (consisting solely of (iB) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, and (iiB) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clause (iy)(B)) to be less than $250,000,000.
(j) permit, as of the last Business Day of each fiscal month of ResCap, ResCap the Consolidated consolidated Tangible Net Worth of ResCap to be less than $250,000,000;.
(k) consummate a Collateral Disposition unless (i) it (or the applicable Subsidiary, as the case may be) receives consideration in the form of Permitted Consideration, and (ii) at the time of the Collateral Disposition, the Permitted Consideration received in such related Collateral Disposition by it or such Subsidiary is at least substantially equivalent to the Fair Value of the Primary Collateral or Supporting Assets issued or sold or otherwise disposed of; provided that this clause (k) will not apply to MHF Assets;
(l) except for Affiliate Transactions engaged by or Proceeds are deposited as Collections in accordance with any Excluded Subsidiary, directly or indirectly, engage in any Affiliate Transaction which is not a Permitted Affiliate Transaction unless (i) such Affiliate Transaction is on terms that are not materially less favorable to it or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by it or such Subsidiary with an unaffiliated party (provided that any transactions between Obligors shall be in compliance with the corporate governance policies of each such Obligor), (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $250,000,000, it delivers to the Lender Agent a resolution adopted in good faith by the majority of its Board of Directors approving such Affiliate Transaction and set forth in an officers’ certificate certifying that such Affiliate Transaction complies with clause (i) above, and (iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions (other than Servicing Advance Factoring Sales) involving aggregate consideration in excess of $500,000,000, it obtains and delivers to the Lender Agent a written opinion of a nationally recognized independent third-party investment banking, accounting or appraisal firm acceptable to the Lender Agent stating that the transaction is fair to it or such Subsidiary, as the case may be, from a financial point of view;
(m) amend or otherwise modify its organizational documents if the result would have a material adverse effect on the Lender Parties (including on the rights or remedies of the Lender Parties);
(n) amend or otherwise modify the 2010 Indenture or the 2015 Indenture if the result of such amendment or modification could reasonably be expected to result in a Material Adverse Effect or materially adversely effect the Lender Parties or their rights, priority and/or remedies under the Facility Documents;
(o) enter into any agreement (other than a Facility Document) prohibiting, restricting or otherwise limiting (i) the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired (other than limits arising from the 2010 Indenture or the 0000 Xxxxxxxxx or agreements governing Permitted Funding Indebtedness and Permitted Refinancing Indebtedness restricting Liens on any collateral covered by Permitted Liens arising under such agreements), (ii) the ability of any Obligor to amend or otherwise modify any Facility Document, or (iii) the ability of any Obligor or other Significant Subsidiary to make any payments, directly or indirectly, to the Borrowers or any Guarantor, including by way of dividends, distributions, advances, repayments of loans, reimbursements of management and other intercompany charges, expenses and accruals or other returns on investments (including, without limitation, entering into any agreement by any Obligor or other Significant Subsidiary that requires distributions otherwise payable to the Borrowers to be escrowed or to be subject to a sinking fund or other similar restriction or to be paid to another Person);
(p) permit ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap to merge or consolidate with any other corporation or other entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to any Person, or permit any Subsidiary of such foregoing entities to do so, unless (i) such entity is the survivor or such entity’s successor is a person organized and existing under the laws of the United States or a state thereof and expressly assumes all of such entity’s obligations under this Agreement and the other Facility Documents; (ii) immediately after giving effect to such consolidation, merger, sale or conveyance, no Default shall have occurred and be continuing; and (iii) each Guarantor confirms that each of its guarantees with respect to the Facility Documents shall remain in full force and effect; provided that none of ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of ResCap shall merge or consolidate with GMAC Bank such that GMAC Bank is the surviving entity or sell, assign, transfer, lease or otherwise convey all or substantially all of its property or assets to GMAC Bank, or permit any of their Subsidiaries to do so;
(q) permit ResCap to directly own any assets other than (i) Equity Interests of the other Obligors, (ii) assets in respect of hedging arrangements, (iii) so long as no Event of Default has occurred and is continuing, cash and cash equivalents and other immaterial assets in the ordinary course of business consistent with past practice, (iv) assets which are subject to a Lien as Collateral under the Security Documents and (v) the Exempted Cash Reserve Account;
(r) use the Net Cash Proceeds from any Servicing Advance Factoring Sale for any purpose other than (i) during the Deferral Period, the funding of servicing advances and (ii) the purchase of Eligible Assets consisting of Servicing T&I Advances, Servicing P&I Advances or Servicing Corporate Advances which become Primary Collateral; or
(s) permit the Servicing Advance Exception Funds on any day to exceed the Servicing Advance Exception Limit.Article IV,
Appears in 1 contract
Samples: Loan Agreement
