Transfers of Notes. Each of Funding Agents and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI (or any successor forms) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 3 contracts
Sources: Omnibus Amendment (BBX Capital Corp), Omnibus Amendment (Bluegreen Vacations Corp), Note Funding Agreement (BBX Capital Corp)
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. .
(b) Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or Note, an interest in a Note Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser Letter.
(if the Conduit Purchaser is Autobahn Funding Company LLCd) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding .
(e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding the Agent hereunder may in all cases be distributed by such Funding the Agent to the Purchasers in its Purchaser GroupPurchasers) except that such Funding the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding the Agent or such Purchaser, (iii) to the extent such information was available to such Funding the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. .
(f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents Agent shall have consented thereto (which consent shall not be in each Funding Agent’s sole discretionunreasonably withheld) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents Agent notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. .
(g) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(i) Any Purchaser shall have the option to change its Investing Office. .
(j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 2 contracts
Sources: Note Funding Agreement (Bluegreen Corp), Note Funding Agreement (Bluegreen Corp)
Transfers of Notes. (a) Each Purchaser hereby makes each of Funding Agents the representations and warranties set forth in the Purchasers form of Investment Letter attached hereto as Exhibit A to the Issuer on the Effective Date. Each Note Owner agrees that any the beneficial interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any public distribution thereof, and that it such Note Owner will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers Note Owner acknowledges that it has no right to require AmeriCredit, AFC or the Issuer to register, under the Securities Act of 1933, as amended, or any other securities law, the Notes (or any the beneficial interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers Note Owner hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it such Note Owner has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A .
(an “Investment Letter”b) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein hereby certifies and any Assignee thereof or Participant therein shall certify to the Issuer, the SellerSellers, the Servicer, the DepositorTrustee, the Indenture Trustee Administrative Agent and the Funding Agents Agent for its Purchaser Group that it is either (A)(ii) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from who is entitled to receive payments under this Agreement and with respect to the Notes is and will be effectively connected with the conduct without deduction or withholding of a trade or business within the any United States (within the meaning of the Code) federal income taxes and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsSellers, the SellerServicer, the Servicer and Trustee, the Indenture TrusteeAdministrative Agent, the Agent for its Purchaser Group, and to the Person Note Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI the forms described in subsection 2.5(c).
(or any successor formsc) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note Note, a Commitment or any interest therein may be made only in accordance with this Section 8.1. Any partial Transfer (other than from a CP Conduit to a related Support Party) of a Note or an interest in a Note Note, a Commitment or any Purchaser Group Percentage by a Committed Purchaser shall be in respect of of, at least $1,000,000 5,000,000 in the aggregate, which may be composed of (A) a portion of the outstanding principal under Aggregate Note Principal Balance or (B) to the Notesextent in excess of a portion of the Aggregate Note Principal Balance subject to such Transfer, Commitment hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, Transferee is a Permitted Transferee and prior to the transfer Transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and Letter. A transferring Purchaser shall promptly notify the Funding Agents have provided their prior written consent Servicer of each Transfer other than (x) an Assignment (with respect to such Transfer. Notwithstanding which the foregoing, the Conduit Purchaser (if the Conduit Purchaser Administrative Agent is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if anyobligated to deliver notice) and interests under this Agreement (y) a pledge or hypothecation to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and Support Party by a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicerwhich is a CP Conduit. Each of AFC, the Sellers, the Issuer, the Depositor, the Seller AmeriCredit and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial confidential information in the Purchaser’s possession concerning this Agreement or the Seller, Related Documents or concerning the Servicer, the Depositor and the Issuer Collateral or such party which has been delivered to the related Funding any Agent or such Purchaser pursuant to this Agreement or the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of AFC, the SellerSellers, the Issuer, the Depositor or AmeriCredit and the Servicer in connection with such Purchaser’s credit evaluation of the SellerReceivables, AFC, the Sellers, the Issuer, the Depositor AmeriCredit or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, ; provided that each prior to any such Transfereedisclosure, such Transferee or Support Party or prospective Transferee agrees or Support Party shall have agreed in writing to maintain comply with the confidentiality provisions of Section 6.2, and a copy of such information pursuant written agreement as to compliance has been finished to the following paragraph. Each Funding Servicer and the Administrative Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (but it being understood that documents provided if the prospective Transferee is a CP Conduit that is proposing to become a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result member of a disclosure by or through Purchaser Group that will continue to have the same Committed Purchaser and/or Support Party, no such Funding Agent or such Purchaser, prior agreement shall be required).
(iiid) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture Related Documents (each, a “Participation”), to any Person Permitted Transferee (eacheach such Permitted Transferee, a “Participant”); provided, however, that no Participation shall be granted to any Person (i) unless and until the Funding Agents Agent for such Purchaser’s Purchaser Group shall have consented thereto thereto, (which consent shall be in each Funding Agent’s sole discretionii) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied satisfied, and (iii) that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such ParticipationNotes. In connection with any such Participation, the related Funding each Agent for a Purchaser Group shall maintain a register of each Participant of members of its Purchaser Group and the amount of each related Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (iiB) none of the Indenture Trustee, the Issuer, the DepositorTrust Collateral Agent, the Seller nor Backup Servicer, the Sellers or the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Purchaser and each Participant shall comply with the provisions of subsection 2.5(c) of this Agreement. No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent for its Purchaser Group. Each Participant shall be entitled to receive additional amounts and indemnification pursuant to Section 2.4 Sections 2.4, 2.5 and 2.6 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section Sections applied to its Participation; provided, in the case of Section 2.5, that such Participant has complied with the provisions of subsection 2.5(c) hereof as if it were a Purchaser; provided, further, no Participant shall be entitled to receive additional amounts or indemnification in amounts in excess of those the participating Purchaser would have been entitled to receive in respect of the amount of the participation transferred to such Participant had no such participation occurred. Each Purchaser shall give the Funding Agents Agent for its Purchaser Group notice of the consummation of any sale by it of a Participation. It shall be a further condition to the grant of any Participation that the Participant shall have certified, represented and warranted that (i) it is entitled to (A) receive payments with respect to its participation without deduction or withholding of any United States federal income taxes and (B) an exemption from United States backup withholding tax, and (ii) to the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify extent such Participant has not otherwise directly provided such forms to the Issuer, the Sellers, the Servicer and the Indenture Trustee. Unless separately agreed , (A) prior to between the related Purchaser date on which the first interest payment is due to such Participant, such Participant will provide to the Issuer, AFC, the Servicer and Trustee, the forms described in subsection 2.5(c) (subject to the Issuer’s consent, as applicable and as set forth therein) as though the Participant were a Purchaser, and (B) such Participant similarly will provide subsequent forms as described in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except subsection 2.5(c) with respect to those matters set forth in clauses such participant as though it were a Purchaser.
(ie) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, may with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) Agent for its Purchaser Group and in accordance with applicable law (which includes applicable securities laws)law, sell sell, transfer or assign (each, an “Assignment”), to any Person Permitted Transferee (each, an “Assignee”) all or any part of its Commitment (if any) or its interest in the Notes and its rights and obligations under this Agreement and the Indenture Related Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C B hereto (a “Transfer Supplement”), executed by such Assignee and the such Purchaser and delivered to the Funding Agents and the Servicer Agent for their its Purchaser Group for its acceptance and consent; provided, however, that (i) no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither (ii) no assignment or sale by a Committed Purchaser shall be effective without the consent of the Servicer nor CP Conduit in its Purchaser Group, (iii) no assignment or sale which results in the Funding Agents addition of a new Purchaser Group shall be effective without the consent of the Administrative Agent (which consent shall not unreasonably be withheld), and (iv) in no event shall the consent of an Agent, the Administrative Agent or the Issuer be required in the case of an assignment by a CP Conduit of its interest in the Notes and its rights and obligations under this Agreement and the Related Documents to any existing Purchaser to another existing Purchaser one or more of its Committed Purchasers in its Purchaser GroupGroup or to any Support Party with respect to such CP Conduit; and provided, further, however, that neither that, with respect to any Assignment by one member of a Purchaser Group to another Person already a member of such Purchaser Group of its rights with respect to the consent Note (but none of its Commitment, if any), it shall not be necessary to execute a Transfer Supplement so long as the Agent for such Purchaser Group gives prompt written notice of such Assignment to the Administrative Agent, the Servicer nor and the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding AgentIssuer. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Purchaser Group Percentages or Liquidity Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent for the applicable Purchaser Group (or, in the case of an Assignment by which a new Purchaser Group is added to this Agreement, the Administrative Agent) shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Sellers, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer of such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding applicable Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Purchaser shall have the option to change its Investing Office. , provided that such Purchaser shall have prior to such change in office complied with the provisions of subsection 2.5(c) hereof and provided further that such Purchaser shall not be entitled to any amounts otherwise payable under Section 2.4 or 2.5 hereof resulting solely from such change in office unless such change in office was mandated by applicable law or by such Purchaser’s compliance with the provisions of this Agreement.
(h) Each Affected Support Party shall be entitled to receive additional payments and indemnification pursuant to Section 2.4 Sections 2.4, 2.5 and 2.6 hereof as though it were a Purchaser and such Section applied Sections shall apply to its interest in or commitment to acquire an interest in the Notes; provided that such Support Party shall not be entitled to additional payments pursuant to (i) Section 2.4 by reason of Regulatory Changes which occurred prior to the date it became a Support Party or (ii) Section 2.5 attributable to its failure to satisfy the requirements of subsection 2.5(c) as if it were a Purchaser.
(i) Each Support Party claiming increased amounts described in Sections 2.4 or 2.5 hereof shall furnish, through its related CP Conduit, to the Issuer, the Sellers, the Servicer, the Trustee and the Agent for the applicable Purchaser Group a certificate setting forth the basis and amount of each request by such Support Party for any such amounts referred to in Sections 2.4 or 2.5, such certificate to be conclusive with respect to the factual information set forth therein absent manifest error.
(j) In the event that a Committed Purchaser is a Downgraded Purchaser, the related CP Conduit shall have the right to replace such Committed Purchaser with a replacement Committed Purchaser consented to by the Issuer (which consent shall not be withheld except for a commercially reasonable purpose or reason), which replacement Committed Purchaser shall succeed to the rights of such Committed Purchaser under this Agreement in respect of its Commitment as a Committed Purchaser, and such Committed Purchaser shall assign such Commitment and its interest in the Notes to such replacement Committed Purchaser in accordance with the provisions of this Section 8.1; provided, that (A) such Committed Purchaser shall not be replaced hereunder with a new investor until such Committed Purchaser has been paid in full its Percentage Interest of the Aggregate Note Principal Balance and all accrued and unpaid interest thereon by such new investor and all other amounts (including all amounts owing under Sections 2.4, 2.5 and 2.6 of this Agreement) owed to it and to all Participants with respect to such Committed Purchaser pursuant to this Agreement, and (ii) if the Committed Purchaser to be replaced is an Agent, a replacement agent shall have been appointed in accordance with Section 7.9 hereof, and the Agent to be replaced shall have been paid all amounts owing to it as agent pursuant to this Agreement. For purposes of this subsection, a Committed Purchaser shall be a “Downgraded Purchaser” if and so long as the credit rating assigned to its short-term obligations by ▇▇▇
Appears in 1 contract
Transfers of Notes. (a) Each of Funding Agents Note Purchaser shall execute and deliver to the Issuer and the Purchasers Transferor on the Closing Date an Investment Letter substantially in the form attached as Exhibit F to the Indenture Each Note Owner agrees that any the interest in the Equipment Loan Notes or Receivables Notes, as applicable, purchased or otherwise acquired by it will be acquired for investment only and not with a view to any public distribution thereof, and that it such Equipment Loan Note Owner or Receivables Note Owner, as applicable, will not offer to sell or otherwise dispose of any Equipment Loan Note or Receivables Note, as applicable, acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Equipment Loan Note Owner and the Purchasers Receivables Note Owner acknowledges that it has no right to require the Issuer or the Transferor to register, under the Securities Act Act, as amended, or any other securities law, the Equipment Loan Notes or the Receivables Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement Agreement or any Transfer Supplement. Each of the Funding Agents Equipment Loan Note Owner and the Purchasers Receivables Note Owner hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Equipment Loan Notes or Receivables Notes, it as applicable, such Equipment Loan Note Owner or Receivables Note Owner has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A .
(an “Investment Letter”b) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a an Equipment Loan Note or Receivables Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the SellerTransferor, the Servicer, the DepositorIndenture Trustee, the Indenture Trustee each Co-Administrative Agent and the Funding Agents Agent for its Purchaser Group that it is either (A)(ii) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from who is entitled to receive payments under this Agreement and with respect to the Equipment Loan Notes is and will be effectively connected with the conduct or Receivables Notes, as applicable, without deduction or withholding of a trade or business within the any United States (within the meaning of the Code) federal income taxes and whose ownership of any interest in an Equipment Loan Note or a Note Receivables Note, as applicable, will not result in any withholding obligation with respect to any payments with respect to the Equipment Loan Notes or the Receivables Notes, as applicable, by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsTransferor, the SellerServicer, the Servicer and the Indenture Trustee, each Co-Administrative Agent, the Agent for its Purchaser Group, and to the Person Equipment Loan Note Owner or Receivables Note Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI the forms described in subsection 2.4(c).
(or any successor formsc) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation transfer or other disposition (but not Participation, Assignment, pledge or hypothecation) (any such non-excluded disposition being referred to herein as a “"Transfer”") of a an Equipment Loan Note, Receivables Note or any interest therein may be made only in accordance with this Section 8.17.1(c) and the Indenture. Any partial Transfer of a Note or an interest in an Equipment Loan Note, a Note Receivables Note, a Commitment or any Purchaser Percentage by a Committed Purchaser shall be in respect of of, at least $1,000,000 5,000,000 in the aggregate, which may be composed of (A) Equipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, or (B) to the extent in excess of the outstanding principal under the NotesEquipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, subject to such Transfer, Commitment hereunder. Any Transfer of an interest in a an Equipment Loan Note or Receivables Note otherwise permitted by this Section 8.1 7.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Note Purchaser’s beneficial 's interest in such Note. No Unless the Transfer occurs between members of the same Purchaser Group, no Equipment Loan Note or Receivables Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer Transfer the Transferee shall have executed and delivered to the Issuer Agent, the Issuer, the Transferor and the Servicer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerLetter. Each of the Issuer, the Depositor, the Seller Transferor and the Servicer authorizes each Note Purchaser to disclose to any Transferee and Support Party and to any prospective Transferee or Support Party which is a Permitted Transferee any and all financial confidential information in the Note Purchaser’s 's possession concerning this Agreement or the SellerRelated Documents or concerning the Accounts, the ServicerEquipment Loans or the Receivables, the Depositor and the Issuer as applicable, or such party which has been delivered to the related Funding any Agent or such Note Purchaser pursuant to this Agreement or the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Note Purchaser by or on behalf of the Seller, the Issuer, the Depositor or Transferor and the Servicer in connection with such Note Purchaser’s 's credit evaluation of the SellerAccounts, the Equipment Loans or the Receivables, as applicable, the Issuer, the Depositor Transferor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement Agreement, the Equipment Loan Notes or the Receivables Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. .
(d) Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent Equipment Loan Note Purchaser or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Receivables Note Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all or part of its Commitment or its interest in the Equipment Loan Notes or Receivables Notes, as applicable, including the payments due to it under this Agreement and the Indenture Related Documents (each, a “"Participation”"), to any Person Permitted Transferee (eacheach such Permitted Transferee, a “"Participant”"); provided, however, that no Participation shall be granted to any Person (i) until such Person, unless such Person is a member of the same Purchaser Group, shall have executed and delivered to the Agent, the Issuer, the Transferor and the Servicer an Investment Letter, (ii) unless and until the Funding Agents Agent for such Equipment Loan Note Purchaser's Purchaser Group or Receivables Note Purchaser's Purchaser Group shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreementthereto, including in subsections 8.1(b) and (ciii) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Equipment Loan Note Purchaser’s 's or Receivables Note Purchaser's beneficial interest (if any) in the Equipment Loan Notes and a specified interest rate on the principal balance of such Participationor Receivable Notes, as applicable. In connection with any such Participation, the related Funding each Agent for a Purchaser Group shall maintain a register of each Participant of members of its Purchaser Group and the amount of each related Participation. Each Equipment Loan Note Purchaser and Receivables Note Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Equipment Loan Note Purchaser’s 's or Receivables Note Purchaser's direct obligations hereunder, and (iiB) none of neither the Indenture Trustee, the IssuerTransferor, the Depositor, the Seller Issuer nor the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Equipment Loan Note Purchaser, Receivables Note Purchaser and each Participant shall comply with the provisions of subsection 2.4(c). No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent for its Purchaser Group and having complied with the requirements set forth in this subsection 7.1(d). Each Participant shall be entitled to receive additional amounts and indemnification pursuant to Section Sections 2.3, 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) and 2.5 as if such Participant were a an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, and such Section Sections applied to its Participation; provided, in the case of Section 2.4, that such Participant has complied with the provisions of subsection 2.4(c) as if it were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable. Each Equipment Loan Note Purchaser and Receivables Note Purchaser shall give the Funding Agents Agent for its Purchaser Group notice of the consummation of any sale by it of a Participation. It shall be a further condition to the grant of any Participation that the Participant shall have certified, represented and warranted that (i) it is entitled to (A) receive payments with respect to its participation without deduction or withholding of any United States federal income taxes and (B) an exemption from United States backup withholding, and (ii) to the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, extent such Participant has not otherwise directly provided such forms to the Servicer and the Indenture Trustee. Unless separately agreed , (A) prior to between the related Purchaser date on which the first interest payment is due to such Participant, such Participant will provide to the Servicer, the Transferor and Indenture Trustee, the forms described in subsection 2.4(c) as though the Participant were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, and (B) such Participant similarly will provide subsequent forms as described in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except subsection 2.4(c) with respect to those matters set forth in clauses such Participant as though it were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable.
(ie) Each Equipment Loan Note Purchaser and (ii) of the proviso to Section 9.1 hereof. Each Receivables Note Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) Agent for its Purchaser Group and in accordance with applicable law (which includes applicable securities laws)and the Indenture, sell or assign (each, an “"Assignment”"), to any Person Permitted Transferee (each, an “"Assignee”") all or any part of its Commitment (if any) or its interest in the Equipment Loan Notes or the Receivables Notes, as applicable, and its rights and obligations under this Agreement and the Indenture Related Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C A hereto (a “"Transfer Supplement”"), executed by such Assignee and the Equipment Loan Note Purchaser or the Receivables Note Purchaser, as applicable, and delivered to the Funding Agents and the Servicer Agent for their its Purchaser Group for its acceptance and consentconsent or, in the case of an assignment, participation or pledge by a CP Conduit to a CPC Committed Purchaser within its Purchaser Group, pursuant to its Support Facility documentation; provided, however, that (i) no such assignment or sale Assignment, other than to a member of the same Purchaser Group, shall be effective unless and until prior to the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, Assignment the Assignee shall have been satisfied; providedexecuted and delivered to the Agent, furtherthe Issuer, howeverthe Transferor and the Servicer an Investment Letter, that neither (ii) no assignment or sale by a CPC Committed Purchaser shall be effective without the consent of the Servicer nor CP Conduit in its Purchaser Group and (iii) in no event shall the Funding Agents shall consent of an Agent be required in the case of an assignment assignment, participation or pledge by a CP Conduit of its interest in the Equipment Loan Notes or Receivables Notes, as applicable, and its rights and obligations under this Agreement and the Related Documents to any existing Purchaser to another existing Purchaser one or more of the CPC Committed Purchasers in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, hereunder and under the Basic Documents as set forth therein and (y) the transferor Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Purchaser Percentages or Liquidity Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent for the applicable Purchaser Group (or, in the case of an Assignment by which a new Purchaser Group is added to this Agreement, each Co-Administrative Agent) shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Transferor, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Note Purchaser’s beneficial 's interest in the Equipment Loan Notes or Receivables Notes (or portion thereof) and surrender for registration of transfer of such Note Purchaser’s Note(s's Equipment Loan Notes or Receivables Notes, as applicable) (if applicable) and delivery to the Issuer Transferor, the Issuer, the Servicer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Equipment Loan Notes (or portion thereof) or the Receivables Notes (or portion thereof), as applicable, shall be transferred in the records of the Indenture Trustee and the related Funding applicable Agent and, if requested by the Assignee, new Equipment Loan Notes or Receivables Notes, as applicable, shall be issued to the Assignee and, if applicable, the transferor Note Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such To the extent of any conflict between the provisions of this Section 7.1 and any provisions of Section 2.12 of the Indenture applicable to Transfers of Equipment Loan Notes or Receivables Notes (and or interests therein) shall be subject to ), the provisions of this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture7.1 shall control. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(f) Each Note Purchaser may pledge its interest in the Equipment Loan Notes or Receivables Notes, as applicable, to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Note Purchaser shall have the option to change its Investing Office. , provided that such Note Purchaser shall continue to be in compliance with the provisions of subsections 2.4(b) and 2.4(c).
(h) Each Affected Party shall be entitled to receive additional payments and indemnification pursuant to Section Sections 2.3, 2.4 hereof and 2.5 as though it were a Note Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Equipment Loan Notes or Receivables Notes, as applicable; provided that such Affected Party shall not be entitled to additional payments pursuant to (i) Section 2.3 by reason of Regulatory Changes which occurred prior to the date it became an Affected Party or (ii) Section 2.4 attributable to its failure to satisfy the requirements of subsection 2.4(c) as if it were a Note Purchaser, and provided further, that unless such Affected Party is a Permitted Transferee or has been consented to by the Transferor, such Affected Party shall be entitled to receive additional amounts pursuant to Sections 2.3 or 2.4 only to the extent that its related CP Conduit would have been entitled to receive such amounts in the absence of the commitment and Support Advances from such Affected Party.
(i) Each Affected Party claiming increased amounts described in Sections 2.3or 2.4 shall furnish, through its related CP Conduit, to the Issuer, the Transferor, the Servicer, the Indenture Trustee and the Agent for the applicable Purchaser Group a certificate setting forth the basis and amount of each request by such Affected Party for any such amounts referred to in Sections 2.3 or 2.4, such certificate to be conclusive with respect to the factual information set forth therein absent manifest error.
(j) In the event that a Committed Purchaser is a Downgraded Purchaser, the related CP Conduit shall have the right to replace such Committed Purchaser with a replacement Committed Purchaser consented to by th
Appears in 1 contract
Transfers of Notes. (a) Each of Funding Agents Purchaser shall execute and deliver to the Purchasers Issuer on the Closing Date an Investment Letter substantially in the form attached hereto as Exhibit A. Each Owner agrees that any the beneficial interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any public distribution thereof, and that it such Owner will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers Owner acknowledges that it has no right to require the AmeriCredit, AWC or the Issuer to register, under the Securities Act of 1933, as amended, or any other securities law, the Notes (or any the beneficial interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement Agreement or any Transfer Supplement. Each of the Funding Agents and the Purchasers Owner hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it such Owner has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A .
(an “Investment Letter”b) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Receivables Seller, the Servicer, the DepositorIndenture Trustee, the Indenture Trustee Administrative Agent and the Funding Agents Agent for its Purchaser Group that it is either (A)(ii) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from who is entitled to receive payments under this Agreement and with respect to the Notes is and will be effectively connected with the conduct without deduction or withholding of a trade or business within the any United States (within the meaning of the Code) federal income taxes and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding Agents, the Receivables Seller, the Servicer and Servicer, the Indenture Trustee, the Administrative Agent, the Agent for its Purchaser Group, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI the forms described in subsection 2.4(c).
(or any successor formsc) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any partial Transfer (other than from a CP Conduit to a related Support Party) of a Note or an interest in a Note shall be in respect of of, at least $1,000,000 of 5,000,000 in the outstanding principal under the Notesaggregate. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the Indenture, Transferee is a Permitted Transferee and prior to the transfer Transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and Letter. A transferring Purchaser shall promptly notify the Funding Agents have provided their prior written consent Servicer of each Transfer other than (x) an Assignment (with respect to such Transfer. Notwithstanding which the foregoing, the Conduit Purchaser (if the Conduit Purchaser Administrative Agent is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if anyobligated to deliver notice) and interests under this Agreement (y) a pledge or hypothecation to the Cost of Funds Bank a Support Party by a Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be which is a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerPurchaser. Each of the IssuerAWC, the Depositor, the Seller Receivables Seller, the Issuer, AmeriCredit and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial confidential information in the Purchaser’s 's possession concerning this Agreement or the Seller, Related Documents or concerning the Servicer, the Depositor and the Issuer Receivables or such party which has been delivered to the related Funding any Agent or such Purchaser pursuant to this Agreement or the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of AWC, the Depositor, the Receivables Seller, the Issuer, the Depositor or AmeriCredit and the Servicer in connection with such Purchaser’s credit 's evaluation of the Receivables, AWC, the Depositor, the Receivables Seller, the Issuer, the Depositor AmeriCredit or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, ; provided that each prior to any such Transfereedisclosure, such Transferee or Support Party or prospective Transferee agrees or Support Party shall have agreed in writing to maintain comply with the confidentiality provisions of Section 6.2, and a copy of such information pursuant written agreement as to compliance has been finished to the following paragraph. Each Funding Agent Servicer and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence Administrative Agent.
(it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Groupd) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture Related Documents (each, a “"Participation”"), to any Person Permitted Transferee (eacheach such Permitted Transferee, a “"Participant”"); provided, however, that no Participation shall be granted to any Person (i) unless and until the Funding Agents Agent for such Purchaser's Purchaser Group shall have consented thereto thereto, (which consent shall be in each Funding Agent’s sole discretionii) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied satisfied, and (iii) that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s 's beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such ParticipationNotes. In connection with any such Participation, the related Funding each Agent for a Purchaser Group shall maintain a register of each Participant of members of its Purchaser Group and the amount of each related Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) none of neither the Indenture Trustee, the Issuer, the Depositor, the Master Servicer, the Receivables Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Purchaser and each Participant shall comply with the provisions of subsection 2.4(c) of this Agreement. No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent for its Purchaser Group. Each Participant shall be entitled to receive additional amounts and indemnification pursuant to Section Sections 2.3, 2.4 and 2.5 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section Sections applied to its Participation; provided, in the case of Section 2.4, that such Participant has complied with the provisions of subsection 2.4(c) hereof as if it were a Purchaser; provided, further, no Participant shall be entitled to receive additional amounts or indemnification in amounts in excess of those the participating Purchaser would have been entitled to receive in respect of the amount of the participation transferred to such Participant had no such participation occurred. Each Purchaser shall give the Funding Agents Agent for its Purchaser Group notice of the consummation of any sale by it of a Participation. It shall be a further condition to the grant of any Participation that the Participant shall have certified, represented and warranted that (i) it is entitled to (A) receive payments with respect to its participation without deduction or withholding of any United States federal income taxes and (B) an exemption from United States backup withholding tax, and (ii) to the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify extent such Participant has not otherwise directly provided such forms to the Issuer, the Receivables Seller, the Servicer and the Indenture Trustee. Unless separately agreed ,
(A) prior to between the related Purchaser date on which the first interest payment is due to such Participant, such Participant will provide to the Issuer, AWC, the Depositor, the Servicer and Indenture Trustee, the forms described in subsection 2.4(c) (subject to the Issuer's consent, as applicable and as set forth therein) as though the Participant were a Purchaser, and (B) such Participant similarly will provide subsequent forms as described in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except subsection 2.4(c) with respect to those matters set forth in clauses such participant as though it were a Purchaser.
(ie) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) Agent for its Purchaser Group and in accordance with applicable law (which includes applicable securities laws)law, sell sell, transfer or assign (each, an “"Assignment”"), to any Person Permitted Transferee (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture Related Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C B hereto (a “"Transfer Supplement”"), executed by such Assignee and the such Purchaser and delivered to the Funding Agents and the Servicer Agent for their its Purchaser Group for its acceptance and consent; provided, however, that (i) no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither (ii) no assignment or sale by a Committed Purchaser shall be effective without the consent of the Servicer nor CP Conduit in its Purchaser Group, (iii) no assignment or sale which results in the Funding Agents addition of a new Purchaser Group shall be effective without the consent of the Administrative Agent (which consent shall not unreasonably be withheld), and (iv) in no event shall the consent of an Agent, the Administrative Agent or the Issuer be required in the case of an assignment by a CP Conduit of its interest in the Notes and its rights and obligations under this Agreement and the Related Documents to any existing Purchaser to another existing Purchaser one or more of its Committed Purchasers in its Purchaser GroupGroup or to any Support Party with respect to such CP Conduit; and provided, further, however, that neither that, with respect to (x) any Assignment by one member of a Purchaser Group to another Person already a member of such Purchaser Group of its rights with respect to the consent Note and (y) any Assignment by a CP Conduit to another CP Conduit administered by the same Agent, it shall not be necessary to execute a Transfer Supplement so long as the Agent for the transferee Purchaser Group gives prompt written notice of such Assignment to the Administrative Agent, the Servicer nor and the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding AgentIssuer. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages Percentage Interests arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent for the applicable Purchaser Group (or, in the case of an Assignment by which a new Purchaser Group is added to this Agreement, the Administrative Agent) shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Receivables Seller, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer of such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding applicable Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Purchaser shall have the option to change its Investing Office. , provided that such Purchaser shall have prior to such change in office complied with the provisions of subsection 2.4(c) hereof and provided further that such Purchaser shall not be entitled to any amounts otherwise payable under Section 2.3 or 2.4 hereof resulting solely from such change in office unless such change in office was mandated by applicable law or by such Purchaser's compliance with the provisions of this Agreement.
(h) Each Affected Support Party shall be entitled to receive additional payments and indemnification pursuant to Section Sections 2.3, 2.4 and 2.5 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes; provided that such Support Party shall not be entitled to additional payments pursuant to (i) Section 2.3 by reason of Regulatory Changes which occurred prior to the date it became a Support Party or (ii) Section 2.4 attributable to its failure to satisfy the requirements of subsection 2.4(c) as if it were a Purchaser, and provided further, that unless such Support Party is a Permitted Transferee or has been consented to by the Issuer, such Support Party shall be entitled to receive additional amounts pursuant to Sections 2.3 or 2.4 only to the extent that its related CP Conduit would have been entitled to receive such amounts in the absence of the commitment and Support Advances from such Support Party; provided, further, no Participant shall be entitled to receive additional amounts or indemnification in amounts in excess of those the participating Purchaser would have been entitled to receive in respect of the amount of the participation transferred to such Participant had no such participation occurred.
(i) Each Support Party claiming increased amounts described in Sections 2.3 or 2.4 hereof shall furnish, through its related CP Conduit, to the Issuer, the Receivables Seller, the Servicer, the Indenture Trustee and the Agent for the applicable Purchaser Group a certificate setting forth the basis and amount of each request by such Support Party for any such amounts referred to in Sections 2.3 or 2.4, such certificate to be conclusive with respect to the factual information set forth therein absent manifest error.
(j) In the event that a Purchaser (or a Participant or Support Party for such Purchaser) is entitled to receive additional payments pursuant to Section 2.3 or 2.4 hereof, the Issuer shall have the right to seek a Replacement Purchaser not so affected and which is reasonably acceptable to the Agent for such Purchaser Group to replace such affected Purchaser. No replacement of a Purchaser shall be effected pursuant to this subsection 8.1(j) if, after giving effect thereto, any amounts shall be owing to the replaced Purchaser hereunder. Each affected Purchaser hereby agrees to take all actions reasonably necessary to permit a Replacement Purchaser to succeed to its rights and obligations hereunder.
Appears in 1 contract
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. .
(b) Each Purchaser which executes a Joinder Supplement Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or Note, an interest in a Note Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the Indenture, Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser Letter.
(if the Conduit Purchaser is Autobahn Funding Company LLCd) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding .
(e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding the Agent hereunder may in all cases be distributed by such Funding the Agent to the Purchasers in its Purchaser GroupPurchasers) except that such Funding the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding the Agent or such Purchaser, (iii) to the extent such information was available to such Funding the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. ; or (vii) in the case of the Structured Purchaser, to any rating agency rating or proposing to rate any commercial paper issued by the Structured Purchaser or a Liquidity Institution.
(f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents Agent shall have consented thereto (which consent shall not be in each Funding Agent’s sole discretionunreasonably withheld) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s 's beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents Agent notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. .
(g) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the Funding Agents Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided(or, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by the Structured Purchaser, to any existing Purchaser to another existing PurchaserEligible Lender), or in the case of any assignment to any Affiliates of a Funding the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture TrusteeTrustee and the Servicer will provide notice thereof to the Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(i) Any Purchaser shall have the option to change its Investing Office. .
(j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
(k) Notwithstanding anything herein to the contrary, the Structured Purchaser shall be permitted to assign or transfer all of its Notes or interests therein and its rights and obligations under this Agreement to a Liquidity Institution (including a Requested Investment (as defined in the Liquidity Agreement)) in accordance with the Liquidity Agreement without the consent of any Person and the requirements (including the documentary requirements) of paragraph (b), (c), the proviso to paragraph (d) and paragraph (g) shall not apply to any such transfer. Any Liquidity Institution shall automatically become a Purchaser hereunder to the extent of such interest and the Issuer and the Agent shall take all steps to reflect and register in the Purchaser Register such transfer to such Liquidity Institution.
Appears in 1 contract
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers Noteholders agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers Noteholders acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers Noteholders hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. .
(b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or Note, an interest in a Note Note, a Commitment or any Noncommitted Purchaser Percentage shall be in respect of (i) in the case of a Committed Purchaser, at least $1,000,000 10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, its Commitment hereunder, or (ii) in the case of a Noncommitted Purchaser, at least $10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the NotesNotes or (B) to the extent in excess of the outstanding principal subject to such Transfer, the product of the Noncommitted Purchaser Percentage subject to such Transfer times the aggregate Commitments hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerLetter. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee and Support Party agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Related Documents shall be held in confidence (it being understood that documents provided to a Funding the Agent hereunder may in all cases be distributed by such Funding the Agent to the Purchasers in its Purchaser GroupPurchasers) except that such Funding the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding the Agent or such Purchaser, (iii) to the extent such information was available to such Funding the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such informationinformation or (vii) in the case of any Purchaser that is a Structured Purchaser, to rating agencies, placement agents and providers of liquidity and credit support who agree to hold such information in confidence; provided, that, in the case of clause (vi) such Funding ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer Servicer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. .
(d) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents Agent shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s 's beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such ParticipationNotes. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent. Each Participant shall be entitled to receive indemnification pursuant to Section Sections 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section Sections applied to its Participation. Each Purchaser shall give the Funding Agents Agent notice of the consummation of any sale by it of a Participation, Participation and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. 9.1.
(e) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the Funding Agents Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, and provided further, however, that neither the consent of the Servicer nor the Funding Agents shall not be required (i) in the case of an assignment by a Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any one or more of its Support Parties, (ii) in the case of an assignment by a Liquidity Provider to another Liquidity Provider pursuant to the terms of the related Support Agreement, (iii) in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or (iv) in the case of any assignment to any Affiliates of the Agent, or (v) in the case of an assignment by the initial Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any Structured Purchaser (A) which is administered by the same Person as such Noncommitted Purchaser, (B) which becomes a Funding Agentparty to the Agreement and (C) which expects to have a cost of funds reasonably similar to the cost of funds of such Noncommitted Purchaser. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Committed Purchaser Percentages, Noncommitted Purchaser Percentages, Liquidity Percentages or Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture TrusteeTrustee and the Servicer will provide notice thereof to each Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Purchaser shall have the option to change its Investing Office. .
(h) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 1 contract
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers Owners agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers Owners acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers Owners hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. .
(b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.,
Appears in 1 contract
Sources: Class a Note Purchase Agreement (Oakwood Homes Corp)
Transfers of Notes. (a) Each of Funding Agents Note Purchaser shall execute and deliver to the Issuer and the Purchasers Transferor on the Closing Date an Investment Letter substantially in the form attached as Exhibit D to the Indenture. Each Note Owner agrees that any the interest in the Equipment Loan Notes or Receivables Notes, as applicable, purchased or otherwise acquired by it will be acquired for investment only and not with a view to any public distribution thereof, and that it such Equipment Loan Note Owner or Receivables Note Owner, as applicable, will not offer to sell or otherwise dispose of any Equipment Loan Note or Receivables Note, as applicable, acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Equipment Loan Note Owner and the Purchasers Receivables Note Owner acknowledges that it has no right to require the Issuer or the Transferor to register, under the Securities Act Act, as amended, or any other securities law, the Equipment Loan Notes or the Receivables Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement Agreement or any Transfer Supplement. Each of the Funding Agents Equipment Loan Note Owner and the Purchasers Receivables Note Owner hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Equipment Loan Notes or Receivables Notes, it as applicable, such Equipment Loan Note Owner or Receivables Note Owner has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A .
(an “Investment Letter”b) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a an Equipment Loan Note or Receivables Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the SellerTransferor, the Servicer, the DepositorIndenture Trustee, the Indenture Trustee Administrative Agent and the Funding Agents Agent for its Purchaser Group that it is either (A)(ii) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from who is entitled to receive payments under this Agreement and with respect to the Equipment Loan Notes is and will be effectively connected with the conduct or Receivables Notes, as applicable, without deduction or withholding of a trade or business within the any United States (within the meaning of the Code) federal income taxes and whose ownership of any interest in an Equipment Loan Note or a Note Receivables Note, as applicable, will not result in any withholding obligation with respect to any payments with respect to the Equipment Loan Notes or the Receivables Notes, as applicable, by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsTransferor, the SellerServicer, the Servicer and the Indenture Trustee, the Administrative Agent, the Agent for its Purchaser Group, and to the Person Equipment Loan Note Owner or Receivables Note Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI the forms described in subsection 2.4(c).
(or any successor formsc) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation transfer or other disposition (but not Participation, Assignment, pledge or hypothecation) (any such non-excluded disposition being referred to herein as a “Transfer”) of a an Equipment Loan Note, Receivables Note or any interest therein may be made only in accordance with this Section 8.17.1(c) and the Indenture. Any partial Transfer of a Note or an interest in an Equipment Loan Note, a Note Receivables Note, a Commitment or any Purchaser Percentage by a Committed Purchaser shall be in respect of at least $1,000,000 5,000,000 in the aggregate, which may be composed of (A) Equipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, or (B) to the extent in excess of the outstanding principal under the NotesEquipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, subject to such Transfer, Commitment hereunder. Any Transfer of an interest in a an Equipment Loan Note or Receivables Note otherwise permitted by this Section 8.1 7.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Note Purchaser’s beneficial interest in such Note. No Unless the Transfer occurs between members of the same Purchaser Group, no Equipment Loan Note or Receivables Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer Transfer (i) the Transferee shall have executed and delivered to the Issuer Administrative Agent, the applicable Agent, the Issuer, the Transferor and the Servicer an Investment Letter and (ii) except with respect to the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoingfirst two Transfers by a Noteholder, the Conduit Purchaser (if Noteholder making such Transfer or the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement Transferee shall have paid to the Cost Administrative Agent a processing fee in the amount of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerUS$3,500. Each of the Issuer, the Depositor, the Seller Transferor and the Servicer authorizes each Note Purchaser to disclose to any Transferee and Support Party and to any prospective Transferee or Support Party which is a Permitted Transferee any and all financial confidential information in the Note Purchaser’s possession concerning this Agreement or the SellerRelated Documents or concerning the Accounts, the ServicerEquipment Loans or the Receivables, the Depositor and the Issuer as applicable, or such party which has been delivered to the related Funding any Agent or such Note Purchaser pursuant to this Agreement or the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Note Purchaser by or on behalf of the Seller, the Issuer, the Depositor or Transferor and the Servicer in connection with such Note Purchaser’s credit evaluation of the SellerAccounts, the Equipment Loans or the Receivables, as applicable, the Issuer, the Depositor Transferor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement Agreement, the Equipment Loan Notes or the Receivables Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. .
(d) Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent Equipment Loan Note Purchaser or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Receivables Note Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all or part of its Commitment or its interest in the Equipment Loan Notes or Receivables Notes, as applicable, including the payments due to it under this Agreement and the Indenture Related Documents (each, a “Participation”), to any Person Permitted Transferee (eacheach such Permitted Transferee, a “Participant”); provided, however, that no Participation shall be granted to any Person (i) until such Person, unless such Person is a member of the same Purchaser Group, shall have executed and delivered to the Agent, the Issuer, the Transferor and the Servicer an Investment Letter, (ii) unless and until the Funding Agents Agent for such Equipment Loan Note Purchaser’s Purchaser Group or Receivables Note Purchaser’s Purchaser Group shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreementthereto, including in subsections 8.1(b) and (ciii) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Equipment Loan Note Purchaser’s or Receivables Note Purchaser’s beneficial interest (if any) in the Equipment Loan Notes and a specified interest rate on the principal balance of such Participationor Receivable Notes, as applicable. In connection with any such Participation, the related Funding each Agent for a Purchaser Group shall maintain a register of each Participant of members of its Purchaser Group and the amount of each related Participation. Each Equipment Loan Note Purchaser and Receivables Note Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Equipment Loan Note Purchaser’s or Receivables Note Purchaser’s direct obligations hereunder, and (iiB) none of neither the Indenture Trustee, the IssuerTransferor, the Depositor, the Seller Issuer nor the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Equipment Loan Note Purchaser, Receivables Note Purchaser and each Participant shall comply with the provisions of subsection 2.4(c). No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent for its Purchaser Group and having complied with the requirements set forth in this subsection 7.1(d). Each Participant shall be entitled to receive additional amounts and indemnification pursuant to Section Sections 2.3, 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) and 2.5 as if such Participant were a an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, and such Section Sections applied to its Participation; provided, in the case of Section 2.4, that such Participant has complied with the provisions of subsection 2.4(c) as if it were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable. Each Equipment Loan Note Purchaser and Receivables Note Purchaser shall give the Funding Agents Agent for its Purchaser Group notice of the consummation of any sale by it of a Participation. It shall be a further condition to the grant of any Participation that the Participant shall have certified, represented and warranted that (i) it is entitled to (A) receive payments with respect to its participation without deduction or withholding of any United States federal income taxes and (B) an exemption from United States backup withholding, and (ii) to the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, extent such Participant has not otherwise directly provided such forms to the Servicer and the Indenture Trustee. Unless separately agreed , (A) prior to between the related Purchaser date on which the first interest payment is due to such Participant, such Participant will provide to the Servicer, the Transferor and Indenture Trustee, the forms described in subsection 2.4(c) as though the Participant were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, and (B) such Participant similarly will provide subsequent forms as described in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except subsection 2.4(c) with respect to those matters set forth in clauses such Participant as though it were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable.
(ie) Each Equipment Loan Note Purchaser and (ii) of the proviso to Section 9.1 hereof. Each Receivables Note Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) Agent for its Purchaser Group and in accordance with applicable law (which includes applicable securities laws)and the Indenture, sell or assign (each, an “Assignment”), to any Person Permitted Transferee (each, an “Assignee”) all or any part of its Commitment (if any) or its interest in the Equipment Loan Notes or the Receivables Notes, as applicable, and its rights and obligations under this Agreement and the Indenture Related Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto A (a “Transfer Supplement”), executed by such Assignee and the Equipment Loan Note Purchaser or the Receivables Note Purchaser, as applicable, and delivered to the Funding Agents and the Servicer Agent for their its Purchaser Group for its acceptance and consentconsent or, in the case of an assignment, participation or pledge by a CP Conduit to a CPC Committed Purchaser within its Purchaser Group, pursuant to its Support Facility documentation; provided, however, that (i) no such assignment or sale Assignment, other than to a member of the same Purchaser Group, shall be effective unless and until prior to the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, Assignment the Assignee shall have been satisfied; providedexecuted and delivered to the Agent, furtherthe Issuer, howeverthe Transferor and the Servicer an Investment Letter, that neither (ii) no assignment or sale by a CPC Committed Purchaser shall be effective without the consent of the Servicer nor CP Conduit in its Purchaser Group and (iii) in no event shall the Funding Agents shall consent of an Agent be required in the case of an assignment assignment, participation or pledge by a CP Conduit of its interest in the Equipment Loan Notes or Receivables Notes, as applicable, and its rights and obligations under this Agreement and the Related Documents to any existing Purchaser to another existing Purchaser one or more of the CPC Committed Purchasers in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, hereunder and under the Basic Documents as set forth therein and (y) the transferor Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Purchaser Percentages or Liquidity Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent for the applicable Purchaser Group (or, in the case of an Assignment by which a new Purchaser Group is added to this Agreement, the Administrative Agent) shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Transferor, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Note Purchaser’s beneficial interest in the Equipment Loan Notes or Receivables Notes (or portion thereof) and surrender for registration of transfer of such Note Purchaser’s Note(sEquipment Loan Notes or Receivables Notes, as applicable) (if applicable) and delivery to the Issuer Transferor, the Issuer, the Servicer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Equipment Loan Notes (or portion thereof) or the Receivables Notes (or portion thereof), as applicable, shall be transferred in the records of the Indenture Trustee and the related Funding applicable Agent and, if requested by the Assignee, new Equipment Loan Notes or Receivables Notes, as applicable, shall be issued to the Assignee and, if applicable, the transferor Note Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such To the extent of any conflict between the provisions of this Section 7.1 and any provisions of Section 2.12 of the Indenture applicable to Transfers of Equipment Loan Notes or Receivables Notes (and or interests therein) shall be subject to ), the provisions of this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture7.1 shall control. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(f) Each Note Purchaser may pledge its interest in the Equipment Loan Notes or Receivables Notes, as applicable, to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Note Purchaser shall have the option to change its Investing Office. , provided that such Note Purchaser shall continue to be in compliance with the provisions of subsections 2.4(b) and 2.4(c).
(h) Each Affected Party shall be entitled to receive additional payments and indemnification pursuant to Section Sections 2.3, 2.4 hereof and 2.5 as though it were a Note Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Equipment Loan Notes or Receivables Notes, as applicable; provided that such Affected Party shall not be entitled to additional payments pursuant to (i) Section 2.3 by reason of Regulatory Changes which occurred prior to the date it became an Affected Party or (ii) Section 2.4 attributable to its failure to satisfy the requirements of subsection 2.4(c) as if it were a Note Purchaser, and provided further, that unless such Affected Party is a Permitted Transferee or has been consented to by the Transferor, such Affected Party shall be entitled to receive additional amounts pursuant to Sections 2.3 or 2.4 only to the extent that its related CP Conduit would have been entitled to receive such amounts in the absence of the commitment and Support Advances from such Affected Party.
(i) Each Affected Party claiming increased amounts described in Sections 2.3 or 2.4 shall furnish, through its related CP Conduit, to the Issuer, the Transferor, the Servicer, the Indenture Trustee and the Agent for the applicable Purchaser Group a certificate setting forth the basis and amount of each request by such Affected Party for any such amounts referred to in Sections 2.3 or 2.4, such certificate to be conclusive with respect to the factual information set forth th
Appears in 1 contract
Sources: Note Purchase Agreement (Alliance Laundry Systems LLC)
Transfers of Notes. (a) Each of Funding Agents and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. .
(b) Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI (or any successor forms) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. .
(d) Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. .
(e) Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. .
(f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. .
(g) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(i) Any Purchaser shall have the option to change its Investing Office. .
(j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 1 contract
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. .
(b) Each Purchaser which executes a Joinder Supplement Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement Agreement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or Note, an interest in a Note Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser Letter.
(if the Conduit Purchaser is Autobahn Funding Company LLCd) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding .
(e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding the Agent hereunder may in all cases be distributed by such Funding the Agent to the Purchasers in its Purchaser GroupPurchasers) except that such Funding the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding the Agent or such Purchaser, (iii) to the extent such information was available to such Funding the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. .
(f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents Agent shall have consented thereto (which consent shall not be in each Funding Agent’s sole discretionunreasonably withheld) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents Agent notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. .
(g) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(i) Any Purchaser shall have the option to change its Investing Office. .
(j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 1 contract
Transfers of Notes. Each of Funding Agents and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI (or any successor forms) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the Funding Agents have Servicer (subject to the same exceptions to consent set forth in Section 8.1(g) hereof) provided their its prior written consent (which shall not be unreasonably withheld) to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) , as Conduit Purchaser, may, in its sole discretion discretion, at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser Autobahn Funding Company LLC under this Agreement and, at or after such time, the Conduit Purchaser Autobahn Funding Company LLC may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents for their acknowledgement and to the Servicer for their acceptance and its consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall not be required (i) in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required (ii) in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding AgentAgent or (iii) upon the occurrence and the continuance of an Event of Default. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 1 contract
Sources: Note Funding Agreement (Bluegreen Vacations Holding Corp)
Transfers of Notes. (a) Each of Funding Agents Note Purchaser shall execute and deliver to the Issuer and the Purchasers Transferor on the Closing Date an Investment Letter substantially in the form attached as Exhibit D to the Indenture. Each Note Owner agrees that any the interest in the Equipment Loan Notes or Receivables Notes, as applicable, purchased or otherwise acquired by it will be acquired for investment only and not with a view to any public distribution thereof, and that it such Equipment Loan Note Owner or Receivables Note Owner, as applicable, will not offer to sell or otherwise dispose of any Equipment Loan Note or Receivables Note, as applicable, acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Equipment Loan Note Owner and the Purchasers Receivables Note Owner acknowledges that it has no right to require the Issuer or the Transferor to register, under the Securities Act Act, as amended, or any other securities law, the Equipment Loan Notes or the Receivables Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement Agreement or any Transfer Supplement. Each of the Funding Agents Equipment Loan Note Owner and the Purchasers Receivables Note Owner hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Equipment Loan Notes or Receivables Notes, it as applicable, such Equipment Loan Note Owner or Receivables Note Owner has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A .
(an “Investment Letter”b) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a an Equipment Loan Note or Receivables Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding AgentsTransferor, the SellerServicer, the Servicer and the Indenture Trustee, the Administrative Agent, the Agent for its Purchaser Group, and to the Person Equipment Loan Note Owner or Receivables Note Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI the applicable forms described in Section 2.4(c).
(or any successor formsc) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation transfer or other disposition (but not Participation, pledge or hypothecation) (any such non-excluded disposition being referred to herein as a “Transfer”) of a an Equipment Loan Note, Receivables Note or any interest therein may be made only in accordance with this Section 8.17.1(c), Section 7.1(e) and the Indenture. Any partial Transfer of a Note or an interest in an Equipment Loan Note, a Note Receivables Note, a Commitment or any Purchaser Percentage by a Committed Purchaser shall be in respect of at least $1,000,000 5,000,000 in the aggregate, which may be composed of (A) Equipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, or (B) to the extent in excess of the outstanding principal under the NotesEquipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, subject to such Transfer, Commitment hereunder. Any Transfer of an interest in a an Equipment Loan Note or Receivables Note otherwise permitted by this Section 8.1 7.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Note Purchaser’s beneficial interest in such Note. No It is expressly understood and agreed that any Transfer of an interest in a Commitment includes the commitment to make Receivables Advance Increases as well as Equipment Loan Advance Increases until the applicable Conversion Date. Unless the Transfer occurs between members of the same Purchaser Group, no Equipment Loan Note or Receivables Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer Transfer (i) the Transferee shall have executed and delivered to the Issuer Administrative Agent, the applicable Agent, the Issuer, the Transferor and the Servicer an Investment Letter and (ii) the Funding Agents Noteholder making such Transfer or the Transferee shall have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement paid to the Cost Administrative Agent a processing fee in the amount of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer$3,500. Each of the Issuer, the Depositor, the Seller Transferor and the Servicer authorizes each Note Purchaser to disclose to any Transferee and Support Party and to any prospective Transferee or Support Party which is a Permitted Transferee any and all financial confidential information in the Note Purchaser’s possession concerning this Agreement or the SellerRelated Documents or concerning the Accounts, the ServicerEquipment Loans or the Receivables, the Depositor and the Issuer as applicable, or such party which has been delivered to the related Funding any Agent or such Note Purchaser pursuant to this Agreement or the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Note Purchaser by or on behalf of the Seller, the Issuer, the Depositor Transferor or the Servicer in connection with such Note Purchaser’s credit evaluation of the SellerAccounts, the Equipment Loans or the Receivables, as applicable, the Issuer, the Depositor Transferor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement Agreement, the Equipment Loan Notes or the Receivables Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. .
(d) Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent Equipment Loan Note Purchaser or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Receivables Note Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all or part of its Commitment or its interest in the Equipment Loan Notes or Receivables Notes, as applicable, including the payments due to it under this Agreement and the Indenture Related Documents (each, a “Participation”), to any Person Permitted Transferee (eacheach such Permitted Transferee, a “Participant”); provided, however, that no Participation shall be granted to any Person (i) until such Person, unless such Person is a member of the same Purchaser Group, shall have executed and delivered to the Agent, the Issuer, the Transferor and the Servicer an Investment Letter, (ii) unless and until the Funding Agents Agent for such Equipment Loan Note Purchaser’s Purchaser Group or Receivables Note Purchaser’s Purchaser Group shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreementthereto, including in subsections 8.1(b) and (ciii) hereof, shall have been satisfied and that unless such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Equipment Loan Note Purchaser’s or Receivables Note Purchaser’s beneficial interest (if any) in the Equipment Loan Notes and a specified interest rate on the principal balance of such Participationor Receivable Notes, as applicable. In connection with any such Participation, the related Funding each Agent for a Purchaser Group shall maintain a register of each Participant of members of its Purchaser Group and the amount of each related Participation. Each Equipment Loan Note Purchaser and Receivables Note Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Equipment Loan Note Purchaser’s or Receivables Note Purchaser’s direct obligations hereunder, and (iiB) none of the Administrative Agent, the Indenture Trustee, the IssuerTransferor, the Depositor, the Seller nor Issuer or the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Equipment Loan Note Purchaser, Receivables Note Purchaser and each Participant shall comply with the provisions of Section 2.4(c). No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent for its Purchaser Group and having complied with the requirements set forth in this Section 7.1(d). Each Participant shall be entitled to receive additional amounts and indemnification pursuant to Section Sections 2.3, 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) and 2.5 as if such Participant were a an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, and such Section Sections applied to its Participation; provided, in the case of Section 2.4, that such Participant has complied with the provisions of Section 2.4(c) as if it were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable. Each Equipment Loan Note Purchaser and Receivables Note Purchaser shall give the Funding Agents Agent for its Purchaser Group notice of the consummation of any sale by it of a Participation, and . It shall be a further condition to the related Funding Agent (upon receipt grant of notice from any Participation that the related Purchaser) Participant shall promptly notify to the Issuer, extent such Participant has not otherwise directly provided such forms to the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) prior to the date on which the first interest payment is due to such Participant, provide to the Servicer, the Transferor and Indenture Trustee, the forms described in Section 2.4(c) as though the Participant were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, and (ii) of the proviso will provide subsequent forms as described in Section 2.4(c) with respect to Section 9.1 hereof. such Participant as though it were an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable.
(e) Each Equipment Loan Note Purchaser and Receivables Note Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) Agent for its Purchaser Group and in accordance with applicable law (which includes applicable securities laws)and the Indenture, sell or assign (each, an “Assignment”), to any Person Permitted Transferee (each, an “Assignee”) all or any part of its Commitment (if any) or its interest in the Equipment Loan Notes or the Receivables Notes, as applicable, and its rights and obligations under this Agreement and the Indenture Related Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto A (a “Transfer Supplement”), executed by such Assignee and the Equipment Loan Note Purchaser or the Receivables Note Purchaser, as applicable, and delivered to the Funding Agents and the Servicer Agent for their its Purchaser Group for its acceptance and consentconsent or, in the case of an assignment, participation or pledge by a CP Conduit to a CPC Committed Purchaser within its Purchaser Group, pursuant to its Support Facility documentation; provided, however, that (i) no such assignment or sale Assignment, other than to a member of the same Purchaser Group, shall be effective unless and until prior to the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, Assignment the Assignee shall have been satisfied; providedexecuted and delivered to the Administrative Agent, furtherthe Agent, howeverthe Issuer, that neither the Transferor and the Servicer an Investment Letter, (ii) no assignment or sale by a CPC Committed Purchaser shall be effective without the consent of the Servicer nor CP Conduit in its Purchaser Group and (iii) in no event shall the Funding Agents shall consent of an Agent be required in the case of an assignment assignment, participation or pledge by a CP Conduit of its interest in the Equipment Loan Notes or Receivables Notes, as applicable, and its rights and obligations under this Agreement and the Related Documents to any existing Purchaser to another existing Purchaser one or more of the CPC Committed Purchasers in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a an Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, hereunder and under the Basic Documents as set forth therein and (y) the transferor Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Purchaser Percentages or Liquidity Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent for the applicable Purchaser Group (or, in the case of an Assignment by which a new Purchaser Group is added to this Agreement, the Administrative Agent) shall on the effective date determined pursuant thereto give notice of such acceptance to the Administrative Agent, the Issuer, the Transferor, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Note Purchaser’s beneficial interest in the Equipment Loan Notes or Receivables Notes (or portion thereof) and surrender for registration of transfer of such Note Purchaser’s Note(sEquipment Loan Notes or Receivables Notes, as applicable) (if applicable) and delivery to the Issuer Transferor, the Issuer, the Servicer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Equipment Loan Notes (or portion thereof) or the Receivables Notes (or portion thereof), as applicable, shall be transferred in the records of the Indenture Trustee and the related Funding applicable Agent and, if requested by the Assignee, new Equipment Loan Notes or Receivables Notes, as applicable, shall be issued to the Assignee and, if applicable, the transferor Note Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such To the extent of any conflict between the provisions of this Section 7.1 and any provisions of Section 2.12 of the Indenture applicable to Transfers of Equipment Loan Notes or Receivables Notes (and or interests therein) shall be subject to ), the provisions of this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture7.1 shall control. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each .
(f) Notwithstanding any other provision of this Agreement to the contrary, each Note Purchaser may at any time pledge or grant a security interest in all or any portion of its rights or its interest in the Equipment Loan Notes or Receivables Notes, as applicable, or under this Agreement as collateral to secure obligations of such Note Purchaser to any Federal Reserve Bank Bank, without notice to or consent of the Issuer, the Administrative Agent or any other Person; provided that no such pledge or grant of a security interest shall release a Note Purchaser from any of its obligations hereunder, or substitute any such pledgee or grantee for such Note Purchaser as collateral in accordance with applicable law. a party hereto.
(g) Any Note Purchaser shall have the option to change its Investing Office. , provided that such Note Purchaser shall continue to be in compliance with the provisions of Sections 2.4(b) and 2.4(c).
(h) Each Affected Party shall be entitled to receive additional payments and indemnification pursuant to Section Sections 2.3, 2.4 hereof and 2.5 as though it were a Note Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Equipment Loan Notes or Receivables Notes, as applicable; provided that such Affected Party shall not be entitled to additional payments pursuant to (i) Section 2.3 by reason of Regulatory Changes which occurred prior to the date it became an Affected Party or (ii) Section 2.4 attributable to its failure to satisfy the requirements of Section 2.4(c) as if it were a Note Purchaser, and provided further, that unless such Affected Party is a Permitted Transferee or has been consented to by the Transferor, such Affected Party shall be entitled to receive additional amounts pursuant to Sections 2.3 or 2.4 only to the extent that its related CP Conduit or assigning Committed Purchaser would have been entitled to receive such amounts in the absence of the commitment and Support Advances from such Affected Party.
(i) Each Affected Party claiming increased amounts described in Sections 2.3 or 2.4 shall furnish, through its related CP Conduit, to the Issuer, the Transferor, the Servicer, the Indenture Trustee, the Administrative Agent and the Agent for the applicable Purchaser Group a certificate setting forth the basis and amount of each request by such Affected Party for any such amounts referred to in Sections 2.3 or 2.4, such certificate to be conclusive with respect to the factual information set forth therein absent manifest error.
(j) In the event that a CPC Committed Purchaser is a Downgraded Purchaser, the related CP Conduit shall have the right to replace such Committed Purchaser with a replacement Committed Purchaser consented to by the Transferor (which consent shall not be unreasonably withheld), which “Replacement Purchaser” shall succeed to the rights of such Committed Purchaser under this Ag
Appears in 1 contract
Sources: Note Purchase Agreement (Alliance Laundry Systems LLC)
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers Owners agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers Owners acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers Owners hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. .
(b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or Note, an interest in a Note Note, a Commitment or any Noncommitted Purchaser Percentage shall be in respect of (i) in the case of a Committed Purchaser, at least $1,000,000 5,000,000 in the aggregate, which may be composed of (A) outstanding principal under the Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, its Commitment hereunder, or (ii) in the case of a Noncommitted Purchaser, at least $5,000,000 in the aggregate, which may be composed of (A) outstanding principal under the NotesNotes or (B) to the extent in excess of the outstanding principal subject to such Transfer, the product of the Noncommitted Purchaser Percentage subject to such Transfer times the aggregate Commitments hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerLetter. Each of the Issuer, the Depositor, the Transferor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor Depositor, the Transferor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor Depositor, the Transferor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor Depositor, the Transferor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee and Support Party agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Related Documents shall be held in confidence (it being understood that documents provided to a Funding the Agent hereunder may in all cases be distributed by such Funding the Agent to the Purchasers in its Purchaser GroupPurchasers) except that such Funding the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding the Agent or such Purchaser, (iii) to the extent such information was available to such Funding the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding the Agent or such Purchaser in connection with this transactionhereunder, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such informationinformation or (vii) in the case of any Purchaser that is a Structured Purchaser, to rating agencies, placement agents and providers of liquidity and credit support who agree to hold such information in confidence; provided, that, in the case of clause (vi) such Funding ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer Servicer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. .
(d) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents Agent shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereofthis subsection 8.1(d), shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s 's beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such ParticipationNotes. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) none of neither the Indenture Trustee, the Issuer, the Depositor, the Transferor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its ParticipationAgent. Each Purchaser shall give the Funding Agents Agent notice of the consummation of any sale by it of a Participation, Participation and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Seller, the Depositor, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. 9.1.
(e) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) Agent and in accordance with applicable law (which includes applicable securities laws)law, sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the Funding Agents and the Servicer Agent for their its acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereofthis subsection 8.1(d), shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by as to any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Committed Purchaser Percentages, Noncommitted Purchaser Percentages, Liquidity Percentages or Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Seller, the Depositor, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer Issuer, the Seller, the Servicer, the Depositor and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 2.10 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Agent's records.
(f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Purchaser shall have the option to change its Investing Office. Each Affected Party , provided that no increased costs or other additional amounts shall be entitled to receive indemnification pursuant to Section 2.4 hereof payable as though it were a Purchaser and result of any such Section applied to its interest in or commitment to acquire an interest in the Noteschange.
Appears in 1 contract
Sources: Class a Note Purchase Agreement (Oakwood Homes Corp)
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. .
(b) Each Purchaser which executes a Joinder Supplement Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or Note, an interest in a Note Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the Indenture, Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser Letter.
(if the Conduit Purchaser is Autobahn Funding Company LLCd) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding .
(e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding the Agent hereunder may in all cases be distributed by such Funding the Agent to the Purchasers in its Purchaser GroupPurchasers) except that such Funding the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding the Agent or such Purchaser, (iii) to the extent such information was available to such Funding the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. ; or (vii) in the case of the Structured Purchaser, to any rating agency rating or proposing to rate any commercial paper issued by the Structured Purchaser or a Liquidity Institution.
(f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents Agent shall have consented thereto (which consent shall not be in each Funding Agent’s sole discretionunreasonably withheld) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s 's beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such ParticipationNotes. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents Agent notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. 9.1.
(g) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the Funding Agents Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, and provided further, however, that neither the consent of the Servicer nor the Funding Agents Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided(or, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by the Structured Purchaser, to any existing Purchaser to another existing PurchaserEligible Lender), or in the case of any assignment to any Affiliates of a Funding the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture TrusteeTrustee and the Servicer will provide notice thereof to the Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(i) Any Purchaser shall have the option to change its Investing Office. .
(j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
(k) Notwithstanding anything herein to the contrary, the Structured Purchaser shall be permitted to assign or transfer all of its Notes or interests therein and its rights and obligations under this Agreement to a Liquidity Institution (including a Requested Investment (as defined in the Liquidity Agreement)) in accordance with the Liquidity Agreement without the consent of any Person and the requirements (including the documentary requirements) of paragraph (b), (c), the proviso to paragraph (d) and paragraph (g) shall not apply to any such transfer. Any Liquidity Institution shall automatically become a Purchaser hereunder to the extent of such interest and the Issuer and the Agent shall take all steps to reflect and register in the Purchaser Register such transfer to such Liquidity Institution.
Appears in 1 contract
Transfers of Notes. (a) Each of Funding Agents the Agent and the Purchasers Owners agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents Agent and the Purchasers Owners acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents Agent and the Purchasers Owners hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent on or before the effective date of its Joinder Supplement Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. .
(b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding AgentsAgent, the Seller, the Servicer and the Indenture Trustee, and to the Person Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor formsform) (and agrees to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. .
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or Note, an interest in a Note Note, a Commitment or any Noncommitted Purchaser Percentage shall be in respect of (i) in the case of a Committed Purchaser, at least $1,000,000 10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, its Commitment hereunder, or (ii) in the case of a Noncommitted Purchaser, at least $10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the NotesNotes or (B) to the extent in excess of the outstanding principal subject to such Transfer, the product of the Noncommitted Purchaser Percentage subject to such Transfer times the aggregate Commitments hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerLetter. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee and Support Party agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Related Documents shall be held in confidence (it being understood that documents provided to a Funding the Agent hereunder may in all cases be distributed by such Funding the Agent to the Purchasers in its Purchaser GroupPurchasers) except that such Funding the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding the Agent or such Purchaser, (iii) to the extent such information was available to such Funding the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such informationinformation or (vii) in the case of any Purchaser that is a Structured Purchaser, to rating agencies, placement agents and providers of liquidity and credit support who agree to hold such information in confidence; provided, that, in the case of clause (vi) such Funding ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer Servicer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. .
(d) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents Agent shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s 's beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such ParticipationNotes. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent. Each Participant shall be entitled to receive indemnification pursuant to Section Sections 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section Sections applied to its Participation. Each Purchaser shall give the Funding Agents Agent notice of the consummation of any sale by it of a Participation, Participation and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. 9.1.
(e) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the Funding Agents Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, and provided further, however, that neither the consent of the Servicer nor the Funding Agents shall not be required (i) in the case of an assignment by a Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any one or more of its Support Parties, (ii) in the case of an assignment by a Liquidity Provider to another Liquidity Provider pursuant to the terms of the related Support Agreement, (iii) in the case of an assignment by any existing Purchaser to another existing Purchaser Purchaser, (iv) in the case of any assignment to Credit Suisse First Boston International Limited or any of its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required Affiliates or (v) in the case of an assignment by the initial Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any existing Structured Purchaser to another existing (A) which is administered by the same Person as such Noncommitted Purchaser, or in (B) which becomes a party to the case Agreement and (C) which expects to have a cost of any assignment funds reasonably similar to any Affiliates the cost of a Funding Agentfunds of such Noncommitted Purchaser. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Committed Purchaser Percentages, Noncommitted Purchaser Percentages, Liquidity Percentages or Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture TrusteeTrustee and the Servicer will provide notice thereof to each Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Purchaser shall have the option to change its Investing Office. .
(h) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 1 contract
Transfers of Notes. Each (a) The Note Purchaser hereby makes each of Funding Agents the representations and warranties set forth in the Purchasers form of Investment Letter attached hereto as Exhibit A to the Issuer on the Closing Date. The Note Purchaser agrees that any the beneficial interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any public distribution thereof, and that it the Note Purchaser will not offer to sell or otherwise dispose of any Note the Notes acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers The Note Purchaser acknowledges that it has no right to require AmeriCredit, AFS SenSub or the Issuer to register, under the Securities Act of 1933, as amended, or any other securities law, the Notes (or any the beneficial interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement Agreement or any Transfer Supplement. Each of the Funding Agents and the Purchasers The Note Purchaser hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it the Note Purchaser has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each .
(b) The Note Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein hereby certifies and any Assignee Transferee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee Servicer and the Funding Agents Trustee that it is either (A)(ii) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from who is entitled to receive payments under this Agreement and with respect to the Notes is and will be effectively connected with the conduct without deduction or withholding of a trade or business within the any United States (within the meaning of the Code) federal income taxes and whose ownership of any interest in a Note the Notes will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI Person.
(or any successor formsc) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein the Notes may be made only in whole or in part, and in accordance with this Section 8.1. Any ; provided, however, that any initial Transfer of a Note or an interest made in a Note part shall be limited to three Transfers so that there are no more than three Noteholders, and any subsequent Transfers shall only be made in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest whole, but not in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Notepart. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless (i) the transferring Note Purchaser has provided at least fifteen (15) Business Days prior written notice to the Issuer, the Seller and the Servicer of the proposed Transfer, (ii) the prospective Transferee has been consented to by AmeriCredit, which consent shall not be unreasonably withheld, delayed or conditioned (provided, that if the prospective Transferee is an Affiliate of the Note Purchaser or an Event of Default has occurred and is continuing, no such transfer complies with the transfer restrictions specified in the Indentureconsent shall be required), (iii) prior to the transfer Transfer, the Transferee shall have executed and delivered to the Issuer and the Note Registrar an Investment Letter substantially in the form of Exhibit A attached hereto, and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLCiv) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the DepositorSeller, the Seller Servicer and the Trustee shall have received a copy of the duly executed Transfer Supplement.
(d) Each of AFS SenSub, the Seller, the Issuer, AmeriCredit and the Servicer authorizes each the Note Purchaser to disclose to any Transferee and any prospective Transferee any and all financial confidential information in the Note Purchaser’s possession concerning this Agreement or the Seller, Basic Documents or concerning the Servicer, the Depositor and the Issuer Collateral or such information which has been delivered to the related Funding Agent or such Note Purchaser pursuant to this Agreement or the Transaction Basic Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Note Purchaser by or on behalf of AFS SenSub, the Seller, the Issuer, the Depositor or AmeriCredit and the Servicer in connection with such the Note Purchaser’s credit evaluation of the Receivables, AFS SenSub, the Seller, the Issuer, the Depositor AmeriCredit or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes; provided, provided that each prior to any such Transfereedisclosure, such Transferee or prospective Transferee agrees shall have agreed in writing to maintain comply with the confidentiality provisions of Section 6.2, and a copy of such information pursuant written agreement as to compliance has been furnished to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence Servicer.
(it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Groupe) except that such Funding Agent or such The Note Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all sell, transfer or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), assign to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists Transferee all of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture Basic Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C B hereto (a “Transfer Supplement”), executed by such Assignee Transferee and the Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consentNote Purchaser; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (xi) the Assignee Transferee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Note Purchaser hereunder as set forth therein and (yii) the transferor transferring Note Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such AssignmentTransfer, the obligations released by any such Note Purchaser shall have been assumed by an Assignee a Transferee or AssigneesTransferees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the AssignmentTransferee. Upon its receipt and acceptance of a duly executed Transfer SupplementThe transferring Note Purchaser shall, the related Funding Agent shall on the effective date determined pursuant thereto give notice to the Transfer Supplement, provide a copy of such acceptance duly executed Transfer Supplement to the Issuer, the Seller, the Servicer and the Indenture Trustee. .
(f) Upon instruction to register a transfer of a the Note Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such of the Note Purchaser’s Note(s) (if applicable) Notes and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the AssigneeTransferee, new Notes shall be issued to the Assignee Transferee and, if applicable, the transferor transferring Note Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.
Appears in 1 contract
Sources: Note Purchase Agreement (General Motors Financial Company, Inc.)
Transfers of Notes. (a) Each Purchaser hereby makes each of Funding Agents the representations and warranties set forth in the Purchasers form of Investment Letter attached hereto as Exhibit A to the Issuer on the Effective Date. Each Purchaser agrees that any the beneficial interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any public distribution thereof, and that it such Purchaser will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers Purchaser acknowledges that it has no right to require AmeriCredit, GMF or the Issuer to register, under the Securities Act of 1933, as amended, or any other securities law, the Notes (or any the beneficial interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers Purchaser hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it such Purchaser has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A .
(an “Investment Letter”b) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein hereby certifies and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the DepositorIndenture Trustee, the Indenture Trustee Administrative Agents and the Funding Agents Agent for its Purchaser Group that it is either (A)(ii) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from who is entitled to receive payments under this Agreement and with respect to the Notes is and will be effectively connected with the conduct without deduction or withholding of a trade or business within the any United States (within the meaning of the Code) federal income taxes and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, will furnish to the Issuer, the Funding Agents, the Seller, the Servicer and Servicer, the Indenture Trustee, the Administrative Agents, the Agent for its Purchaser Group, and to the Person Purchaser making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI the forms described in subsection 2.5(c).
(or any successor formsc) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note Note, a Commitment or any interest therein may be made only in accordance with this Section 8.1. Any partial Transfer (other than from a CP Conduit to a related Support Party) of a Note or an interest in a Note Note, a Commitment or any Purchaser Group Percentage by a Committed Purchaser shall be in respect of of, at least $1,000,000 5,000,000 in the aggregate, which may be composed of (A) a portion of the outstanding principal under Aggregate Note Balance or (B) to the Notesextent in excess of a portion of the Aggregate Note Balance subject to such Transfer, Commitment hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, Transferee is a Permitted Transferee and prior to the transfer Transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and Letter. A transferring Purchaser shall promptly notify the Funding Servicer of each Transfer other than (x) an Assignment (with respect to which the Administrative Agents have provided their prior written consent are obligated to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if anydeliver notice) and interests under this Agreement (y) a pledge or hypothecation to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and Support Party by a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicerwhich is a CP Conduit. Each of the Seller, the Issuer, the Depositor, the Seller AmeriCredit and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial confidential information in the Purchaser’s possession concerning this Agreement or the Seller, Related Documents or concerning the Servicer, the Depositor and the Issuer Collateral or such party which has been delivered to the related Funding any Agent or such Purchaser pursuant to this Agreement or the Transaction Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of AmeriCredit, the Seller, the Issuer, the Depositor or Issuer and the Servicer in connection with such Purchaser’s credit evaluation of the 2011-A Lease Agreements and the 2011-A Leased Vehicles, AmeriCredit, the Seller, the Issuer, the Depositor Issuer or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, ; provided that each prior to any such Transfereedisclosure, such Transferee or Support Party or prospective Transferee agrees or Support Party shall have agreed in writing to maintain comply with the confidentiality provisions of Section 6.2, and a copy of such information pursuant written agreement as to compliance has been finished to the following paragraph. Each Funding Agent Servicer and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence Administrative Agents (but it being understood that documents provided if the prospective Transferee is a CP Conduit that is proposing to become a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result member of a disclosure by or through Purchaser Group that will continue to have the same Committed Purchaser and/or Support Party, no such Funding Agent or such Purchaser, prior agreement shall be required).
(iiid) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws)law, at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture Related Documents (each, a “Participation”), to any Person Permitted Transferee (eacheach such Permitted Transferee, a “Participant”); provided, however, that no Participation shall be granted to any Person (i) unless and until the Funding Agents Agent for such Purchaser’s Purchaser Group shall have consented thereto thereto, (which consent shall be in each Funding Agent’s sole discretionii) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied satisfied, and (iii) that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such ParticipationNotes. In connection with any such Participation, the related Funding each Agent for a Purchaser Group shall maintain a register of each Participant of members of its Purchaser Group and the amount of each related Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (iiB) none of the Indenture Trustee, the Issuer, the DepositorCollateral Agent, the Backup Servicer, the Seller nor or the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Purchaser and each Participant shall comply with the provisions of subsection 2.5(c) of this Agreement. No Participant shall be entitled to transfer Transfer all or any portion of its Participation, without the prior written consent of the Funding AgentsAgent for its Purchaser Group. Each Participant shall be entitled to receive additional amounts and indemnification pursuant to Section 2.4 Sections 2.4, 2.5 and 2.6 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section Sections applied to its Participation; provided, in the case of Section 2.5, that such Participant has complied with the provisions of subsection 2.5(c) hereof as if it were a Purchaser; provided, further, no Participant shall be entitled to receive additional amounts or indemnification in amounts in excess of those the participating Purchaser would have been entitled to receive in respect of the amount of the participation transferred to such Participant had no such participation occurred. Each Purchaser shall give the Funding Agents Agent for its Purchaser Group notice of the consummation of any sale by it of a Participation. It shall be a further condition to the grant of any Participation that the Participant shall have certified, represented and warranted that (i) it is entitled to (A) receive payments with respect to its participation without deduction or withholding of any United States federal income taxes and (B) an exemption from United States backup withholding tax, and (ii) to the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify extent such Participant has not otherwise directly provided such forms to the Issuer, the Seller, the Servicer and the Indenture Trustee. Unless separately agreed , (A) prior to between the related Purchaser date on which the first interest payment is due to such Participant, such Participant will provide to the Issuer, AmeriCredit, the Servicer and Indenture Trustee, the forms described in subsection 2.5(c) (subject to the Issuer’s consent, as applicable and as set forth therein) as though the Participant were a Purchaser, and (B) such Participant similarly will provide subsequent forms as described in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except subsection 2.5(c) with respect to those matters set forth in clauses such participant as though it were a Purchaser.
(ie) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, may with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) Agent for its Purchaser Group and in accordance with applicable law (which includes applicable securities laws)law, sell sell, transfer or assign (each, an “Assignment”), to any Person Permitted Transferee (each, an “Assignee”) all or any part of its Commitment (if any) or its interest in the Notes and its rights and obligations under this Agreement and the Indenture Related Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C B hereto (a “Transfer Supplement”), executed by such Assignee and the such Purchaser and delivered to the Funding Agents and the Servicer Agent for their its Purchaser Group for its acceptance and consent; provided, however, that (i) no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (csubsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither (ii) no assignment or sale by a Committed Purchaser shall be effective without the consent of the Servicer nor CP Conduit in its Purchaser Group, (iii) no assignment or sale which results in the Funding addition of a new Purchaser Group shall be effective without the consent of the Administrative Agents (which consent shall not unreasonably be withheld), and (iv) in no event shall the consent of an Agent, the Administrative Agents or the Issuer be required in the case of an assignment by a CP Conduit of its interest in the Notes and its rights and obligations under this Agreement and the Related Documents to any existing Purchaser to another existing Purchaser one or more of its Committed Purchasers in its Purchaser GroupGroup or to any Support Party with respect to such CP Conduit; and provided, further, however, that neither that, with respect to any Assignment by one member of a Purchaser Group to another Person already a member of such Purchaser Group of its rights with respect to the consent Note (but none of its Commitment, if any), it shall not be necessary to execute a Transfer Supplement so long as the Agent for such Purchaser Group gives prompt written notice of such Assignment to the Administrative Agents, the Servicer nor and the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding AgentIssuer. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentage Interests, Purchaser Group Percentages or Liquidity Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent for the applicable Purchaser Group (or, in the case of an Assignment by which a new Purchaser Group is added to this Agreement, the Administrative Agents) shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Seller, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer of such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding applicable Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. .
(f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. .
(g) Any Purchaser shall have the option to change its Investing Office. , provided that such Purchaser shall have prior to such change in office complied with the provisions of subsection 2.5(c) hereof and provided further that such Purchaser shall not be entitled to any amounts otherwise payable under Section 2.4 or 2.5 hereof resulting solely from such change in office unless such change in office was mandated by applicable law or by such Purchaser’s compliance with the provisions of this Agreement.
(h) Each Affected Support Party shall be entitled to receive additional payments and indemnification pursuant to Section 2.4 Sections 2.4, 2.5 and 2.6 hereof as though it were a Purchaser and such Section applied Sections shall apply to its interest in or commitment to acquire an interest in the Notes; provided that such Support Party shall not be entitled to additional payments pursuant to (i) Section 2.4 by reason of Regulatory Changes which occurred prior to the date it became a Support Party or (ii) Section 2.5 attributable to its failure to satisfy the requirements of subsection 2.5(c) as if it were a Purchaser.
(i) Each Support Party claiming increased amounts described in Sections 2.4 or 2.5 hereof shall furnish, through its related CP Conduit, to the Issuer, the Seller, the Servicer, the Indenture Trustee and the Agent for the applicable Purchaser Group a certificate setting forth the basis and amount of each request by such Support Party for any such amounts referred to in Sections 2.4 or 2.5, such certificate to be conclusive with respect to the factual information set forth therein absent manifest error.
(j) In the event that a Committed Purchaser is a Downgraded Purchaser, the related CP Conduit shall have the right to replace such Committed Purchaser with a replacement Committed Purchaser consented to by the Issuer (which consent shall not be withheld except for a commercially reasonable purpose or reason), which replacement Committed Purchaser shall succeed to the rights of such Committed Purchaser under this Agreement in respect of its Commitment as a Committed Purchaser, and such Committed Purchaser shall assign such Commitment and its interest in the Notes to such replacement Committed Purchaser in accordance with the provisions of this Section 8.1; provided, that (A) such Committed Purchaser shall not be replaced hereunder with a new investor until such Committed Purchaser has been paid in full its Percentage Interest of the Aggregate Note Balance and all accrued and unpaid interest thereon by such new investor and all other amounts (including all amounts owing under Sections 2.4, 2.5 and 2.6 of this Agreement) owed to it and to all Participants with respect to such Committed Purchaser pursuant to this Agreement, and (ii) if the Committed Purchaser to be replaced is an Agent, a replacement agent shall have been appointed in accordance with Section 7.9 hereof, and the Agent to be replaced shall have been paid all amounts owing to it as agent pursuant to this Agreement. For purposes of this subsection, a Committed Purchaser shall be a “Downgraded Purchase
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Sources: Note Purchase Agreement (General Motors Financial Company, Inc.)