Transfers of Notes. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided that (i) except as provided under Section 6.07, the Issuer may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Purchaser (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and (ii) no Purchaser may transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted transfer to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted transferees, to the extent provided in paragraph (e) of this Section, Participants and, to the extent expressly contemplated hereby, the Related Parties of each of the Purchaser Representative and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement. (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Purchaser may transfer to one or more Eligible Transferees all or a portion of its rights and obligations under this Agreement (including all or a portion of any Note or any Commitment) with the prior written consent of (A) the Issuer (such consent not to be unreasonably withheld, conditioned or delayed); provided, that (x) the Issuer shall be deemed to have consented to any transfer of Notes (other than any such assignment to a Disqualified Institution) unless it has objected thereto by written notice to the Purchaser Representative within 10 Business Days after receipt of written notice thereof, (y) the consent of the Issuer shall not be required for any transfer of Notes or Commitments (1) to any Affiliate of such Purchaser or an Approved Fund of such Purchaser, in each case under this clause (1), to the extent the relevant transferee constitutes a Permitted Holder or (2) at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Issuer) exists; provided, further, that notwithstanding the foregoing, the Issuer may withhold its consent to any assignment to (1) any Person (other than a Competitor Debt Fund Affiliate, unless the Issuer has other reasonable grounds on which to withhold its consent) that is not a Disqualified Institution but is known by the Issuer to be an Affiliate of a Disqualified Institution regardless of whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name and/or (2) any Person, if the effect of such transfer would result in a change of control hereunder or under any other Indebtedness of the Issuer and/or any subsidiary thereof (including any First Lien Facility); and (B) the Purchaser Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided, that no consent of the Purchaser Representative shall be required for any transfer to another Purchaser, any Affiliate of a Purchaser or any Approved Fund. (ii) Transfers shall be subject to the following additional conditions: (A) except in the case of any transfer to another Purchaser, any Affiliate of any Purchaser or any Approved Fund or any transfer of the entire remaining amount of the relevant transferring Purchaser’s Notes or Commitments of any Class, the principal amount of Notes or Commitments of the transferring Purchaser subject to the relevant transfer (determined as of the date on which the Transfer Agreement with respect to such transfer is delivered to the Purchaser Representative and determined on an aggregate basis in the event of concurrent transfers to Related Funds or by Related Funds) shall not be less than $1,000,000 unless the Issuer and the Purchaser Representative otherwise consent; (B) any partial transfer shall be made as a transfer of a proportionate part of all the relevant transferring Purchaser’s rights and obligations under this Agreement; (C) the parties to each transfer shall execute and deliver to the Purchaser Representative a Transfer Agreement in the form attached as Exhibit A-1, together with a processing and recordation fee in the amount of $3,500; provided that the Purchaser Representative may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and (D) the relevant Eligible Transferee, if it is not a Purchaser, shall deliver on or prior to the effective date of such assignment, to the Purchaser Representative (1) an Administrative Questionnaire and (2) any Internal Revenue Service form required under Section 2.20 and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (iii) Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in any Transfer Agreement, the Eligible Transferee thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to such Transfer Agreement, have the rights and obligations of a Purchaser under this Agreement, and the transferring Purchaser thereunder shall, to the extent of the interest transferred by such Transfer Agreement, be released from its obligations under this Agreement (and, in the case of a Transfer Agreement covering all of the transferring Purchaser’s rights and obligations under this Agreement, such Purchaser shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of Sections 2.18, 2.20 and 9.03 with respect to facts and circumstances occurring on or prior to the effective date of such transfer and (B) subject to its obligations thereunder and under Section 9.13). (iv) The Purchaser Representative, acting for this purpose as a non-fiduciary agent of the Issuer, shall maintain at one of its offices a copy of each Transfer Agreement delivered to it and a register for the recordation of the names and addresses of the Purchasers and their respective successors and assigns, and the commitment of, and principal amount of and interest on the Notes owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any error in such recordation, shall not affect the Issuer’s obligations in respect of such Notes. The entries in the Register shall be conclusive, absent manifest error, and the Issuer, the Purchaser Representative and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Issuer and each Purchaser (but only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice. (v) Upon its receipt of a duly completed Transfer Agreement executed by a transferring Purchaser and an Eligible Transferee, the Eligible Transferee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the transferee is already a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section, the Purchaser Representative shall promptly accept such Transfer Agreement and record the information contained therein in the Register. No transfer shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. (vi) By executing and delivering a Transfer Agreement, the transferring Purchaser and the Eligible Transferee thereunder shall be deemed to confirm and agree with each other and the other parties hereto as follows: (A) the transferring Purchaser warrants that it is the legal and beneficial owner of the interest being transferred thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances of its Notes, in each case without giving effect to any transfer thereof which has not become effective, are as set forth in such Transfer Agreement, (B) except as set forth in clause (A) above, the transferring Purchaser makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Issuer or any Restricted Subsidiary or the performance or observance by the Issuer or any Restricted Subsidiary of any of its obligations under this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto; (C) the transferee represents and warrants that it is an Eligible Transferee, legally authorized to enter into such Transfer Agreement; (D) the transferee confirms that it has received a copy of this Agreement and each applicable Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Transfer Agreement; (E) the transferee will independently and without reliance upon the Purchaser Representative, the transferring Purchaser or any other Purchaser and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) the transferee appoints and authorizes the Purchaser Representative to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Purchaser Representative, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) the transferee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Purchaser. (c) (i) Any Purchaser may, without the consent of the Issuer, the Purchaser Representative or any other Purchaser, sell participations to any bank or other entity (other than to any Disqualified Institution, any natural Person, any holder of Series A Preferred Shares (or any Affiliate of such holder) or, other than with respect to any participation to any Debt Fund Affiliate (any such participations to a Debt Fund Affiliate being subject to the limitation set forth in the first proviso of the final paragraph set forth in Section 9.05(g), as if the limitation applied to such participations), the Issuer or any of its Affiliates) (a “Participant”) in all or a portion of such Purchaser’s rights and obligations under this Agreement (including all or a portion of its commitments and the Notes owing to it); provided, that (A) such Purchaser’s obligations under this Agreement shall remain unchanged, (B) such Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Issuer, the Purchaser Representative and the other Purchasers shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Notes or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject to paragraph (c)(ii) of this Section, the Issuer agrees that each Participant shall be entitled to the benefits of Sections 2.18 and 2.20 (subject to the limitations and requirements of such Sections and Section 2.22) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section and it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Purchaser, and if additional amounts are required to be paid pursuant to Section 2.20(a) or Section 2.20(c), to the Issuer and the Purchaser Representative). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Purchaser; provided that such Participant shall be subject to Section 2.21(c) as though it were a Purchaser. (i) No Participant shall be entitled to receive any greater payment under Sections 2.18 or 2.20 than the participating Purchaser would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Issuer’s prior written consent (in its sole discretion), expressly acknowledging that such Participant’s entitlement to benefits under Sections 2.18 and 2.20 is not limited to what the participating Purchaser would have been entitled to receive absent the participation. Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, maintain a register on which it enters the name and address of each Participant and their respective successors and registered assigns, and the principal and interest amounts of each Participant’s interest in the Notes or other obligations under the Note Documents (a “Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Note or any other obligation under any Note Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations or under Section 1.163 5(b) of the proposed U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Purchaser Representative (in its capacity as Purchaser Representative) shall have no responsibility for maintaining a Participant Register. (d) (i) Any Purchaser may at any time pledge or transfer a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of such Purchaser, including without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Purchaser, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release any Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party hereto. (i) No Purchaser may at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrumen
Appears in 4 contracts
Sources: Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.)
Transfers of Notes. (a) The following provisions shall apply with respect to any proposed transfer of this Agreement shall be binding upon and inure any Transfer Restricted Note prior to the benefit expiration of the parties hereto holding period applicable to sales of such Notes under Rule 144, and their respective successors and permitted assigns; provided that (i) except as provided under Section 6.07, the Issuer may not assign or otherwise Security Registrar shall refuse to register any transfer any of its rights or obligations hereunder without the prior written consent of each Purchaser (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and (ii) no Purchaser may transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted transfer Notes not complying with the terms of this Section shall be null and void and, with respect to any attempted transfer to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted transferees, to the extent provided in paragraph (e) of this Section, Participants and, to the extent expressly contemplated hereby, the Related Parties of each of the Purchaser Representative and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions restrictions set forth in paragraph (b)(ii) belowthe Restricted Notes Legend and in this Article V. In addition to the requirements set forth in Section 305 of the Indenture, any Purchaser Restricted Transfer Notes that are presented or surrendered for registration of transfer or exchange pursuant to Section 305 of the Indenture shall be accompanied by the following additional information and documents, as applicable, upon which the Security Registrar may transfer to one or more Eligible Transferees all or a portion of its rights and obligations under this Agreement (including all or a portion of any Note or any Commitment) with the prior written consent ofconclusively rely:
(A1) the Issuer (if such consent not to be unreasonably withheld, conditioned or delayed); provided, that (x) the Issuer shall be deemed to have consented to any transfer of Transfer Restricted Notes (other than any such assignment to a Disqualified Institution) unless it has objected thereto by written notice are being delivered to the Purchaser Representative within 10 Business Days after receipt Security Registrar by a Holder for registration in the name of written notice thereofsuch Holder, without transfer, a certification from such Holder to that effect (yin substantially the form of Exhibit B hereto);
(2) the consent of the Issuer shall not be required for any transfer of if such Transfer Restricted Notes or Commitments are being transferred (1) to any Affiliate a QIB in accordance with Rule 144 or (2) pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B hereto);
(3) if such Purchaser Transfer Restricted Notes are being transferred pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, certifications to that effect from such Holder (in substantially the form of Exhibit B and Exhibit C hereto); or
(4) if such Transfer Restricted Notes are being transferred in reliance on and in compliance with (1) an Approved Fund exemption from registration in accordance with Rule 144 under the Securities Act or (2) another exemption from the registration requirements of the Securities Act, a certification to that effect from such PurchaserHolder (in substantially the form of Exhibit B attached hereto) and an opinion of counsel, certification or other evidence as may reasonably be required to that effect if the Issuer or the Trustee so requests.
(b) A Holder of a beneficial interest in Regulation S Global Note who wishes to transfer its interest in such Note to a QIB in accordance with Rule 144A who takes delivery in the form of a beneficial interest in the Restricted Global Note shall deliver to the Security Registrar a certification to that effect (in substantially the form of Exhibit C attached hereto) upon which the Security Registrar may conclusively rely. After the expiration of the Restricted Period, interests in the Regulation S Global Note may be transferred without requiring the certification set forth in this Section 5.02(b).
(c) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with Section 305 of the Indenture and Section 3.01 and Section 5.02 herein (including the restrictions on transfer set forth therein and herein) and the rules and procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth therein and herein to the extent required by the Securities Act; provided, however, that prior to the expiration of the Restricted Period, transfers and exchanges of beneficial interests in the Regulation S Global Note may be made pursuant to such restrictions only (1) to a Person that is not a U.S. person or for the account or benefit of a Person that is not a U.S. person within the meaning of Regulation S under the Securities Act or (2) to a QIB, in each case under this clause (1), to the extent the relevant transferee constitutes a Permitted Holder that hold such interests through Euroclear or (2) at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Issuer) exists; provided, further, that notwithstanding the foregoing, the Issuer may withhold its consent to any assignment to (1) any Person (other than a Competitor Debt Fund Affiliate, unless the Issuer has other reasonable grounds on which to withhold its consent) that is not a Disqualified Institution but is known by the Issuer to be an Affiliate of a Disqualified Institution regardless of whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name and/or (2) any Person, if the effect of such transfer would result in a change of control hereunder or under any other Indebtedness of the Issuer and/or any subsidiary thereof (including any First Lien Facility); and
(B) the Purchaser Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided, that no consent of the Purchaser Representative shall be required for any transfer to another Purchaser, any Affiliate of a Purchaser or any Approved FundClearstream.
(iid) Transfers If Notes are issued upon the registration of transfer, exchange or replacement of Notes not bearing the Restricted Notes Legend, the Notes so issued shall not bear such legends. If Notes are issued upon the registration or transfer, exchange or replacement of Notes bearing the Restricted Notes Legend, or if a request is made to remove the Restricted Notes Legend on a Note, the Notes so issued shall bear the Restricted Notes Legend, or the Restricted Notes Legend shall not be subject to the following additional conditions:
(A) except in removed, as the case of any transfer to another Purchasermay be, any Affiliate of any Purchaser or any Approved Fund or any transfer of the entire remaining amount of the relevant transferring Purchaser’s Notes or Commitments of any Class, the principal amount of Notes or Commitments of the transferring Purchaser subject to the relevant transfer (determined as of the date on which the Transfer Agreement with respect to such transfer unless there is delivered to the Purchaser Representative and determined on Issuer such satisfactory evidence, which may include an aggregate basis in the event opinion of concurrent transfers to Related Funds or counsel, as may be reasonably required by Related Funds) shall not be less than $1,000,000 unless the Issuer and that neither the Purchaser Representative otherwise consent;
(B) any partial Restricted Notes Legend nor the restrictions on transfer shall be made as a transfer set forth therein are required to ensure that transfers thereof comply with the provisions of a proportionate part Rule 144A, Rule 144 or Regulation S, that such Notes are not “restricted securities” within the meaning of all Rule 144 or that such Notes were transferred pursuant to an effective registration statement under the relevant transferring Purchaser’s rights and obligations under this Agreement;
(C) the parties to each transfer shall execute and deliver to the Purchaser Representative a Transfer Agreement in the form attached as Exhibit A-1, together with a processing and recordation fee in the amount of $3,500; provided that the Purchaser Representative may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and
(D) the relevant Eligible Transferee, if it is not a Purchaser, shall deliver on or prior to the effective date Securities Act. Upon provision of such assignment, to the Purchaser Representative (1) an Administrative Questionnaire and (2) any Internal Revenue Service form required under Section 2.20 and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(iii) Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in any Transfer Agreementsatisfactory evidence, the Eligible Transferee thereunder shall be a party hereto andTrustee, to at the extent of the interest assigned pursuant to such Transfer Agreement, have the rights and obligations of a Purchaser under this Agreement, and the transferring Purchaser thereunder shall, to the extent of the interest transferred by such Transfer Agreement, be released from its obligations under this Agreement (and, in the case of a Transfer Agreement covering all of the transferring Purchaser’s rights and obligations under this Agreement, such Purchaser shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of Sections 2.18, 2.20 and 9.03 with respect to facts and circumstances occurring on or prior to the effective date of such transfer and (B) subject to its obligations thereunder and under Section 9.13).
(iv) The Purchaser Representative, acting for this purpose as a non-fiduciary agent direction of the Issuer, shall maintain at one authenticate and deliver a Note that does not bear the Restricted Notes Legend. If a Restricted Notes Legend is removed from the face of its offices a copy of each Transfer Agreement delivered to it and a register for the recordation of the names and addresses of the Purchasers and their respective successors and assigns, Note and the commitment of, and principal amount of and interest on the Notes owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any error in such recordation, shall not affect the Issuer’s obligations in respect of such Notes. The entries in the Register shall be conclusive, absent manifest error, and the Issuer, the Purchaser Representative and the Purchasers shall treat each Person whose name Note is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection subsequently held by the Issuer and each Purchaser (but only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Transfer Agreement executed by a transferring Purchaser and an Eligible Transferee, the Eligible Transferee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the transferee is already a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section, the Purchaser Representative shall promptly accept such Transfer Agreement and record the information contained therein in the Register. No transfer shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) By executing and delivering a Transfer Agreement, the transferring Purchaser and the Eligible Transferee thereunder shall be deemed to confirm and agree with each other and the other parties hereto as follows: (A) the transferring Purchaser warrants that it is the legal and beneficial owner of the interest being transferred thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances of its Notes, in each case without giving effect to any transfer thereof which has not become effective, are as set forth in such Transfer Agreement, (B) except as set forth in clause (A) above, the transferring Purchaser makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Issuer or any Restricted Subsidiary or the performance or observance by the Issuer or any Restricted Subsidiary of any of its obligations under this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto; (C) the transferee represents and warrants that it is an Eligible Transferee, legally authorized to enter into such Transfer Agreement; (D) the transferee confirms that it has received a copy of this Agreement and each applicable Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Transfer Agreement; (E) the transferee will independently and without reliance upon the Purchaser Representative, the transferring Purchaser or any other Purchaser and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) the transferee appoints and authorizes the Purchaser Representative to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Purchaser Representative, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) the transferee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Purchaser.
(c) (i) Any Purchaser may, without the consent Affiliate of the Issuer, the Purchaser Representative or any other Purchaser, sell participations to any bank or other entity Restricted Notes Legend and the restrictions on transfer set forth therein shall be reinstated.
(other than to any Disqualified Institution, any natural Person, any holder of Series A Preferred Shares (or any Affiliate of such holdere) or, other than with respect to any participation to any Debt Fund Affiliate (any such participations to a Debt Fund Affiliate being subject Notwithstanding anything herein to the limitation set forth contrary, neither the Trustee nor the Security Registrar shall have any responsibility to receive any letters, opinions or certifications, nor any responsibility to monitor compliance with any transfer restrictions, in connection with any transfer or exchange of any beneficial interest in a Global Note for a beneficial interest in the first proviso of same Global Note.
(f) Notwithstanding the final paragraph set forth foregoing, in Section 9.05(g), as if the limitation applied event that any Transfer Restricted Notes are exchanged for an Exchange Notes in connection with an effective registration statement pursuant to such participations)the Registration Rights Agreement, the Issuer or any shall issue and, at the direction of its Affiliates) (a “Participant”) in all or a portion of such Purchaser’s rights and obligations under this Agreement (including all or a portion of its commitments and the Notes owing to it); provided, that (A) such Purchaser’s obligations under this Agreement shall remain unchanged, (B) such Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Issuer, the Purchaser Representative and Trustee shall authenticate the other Purchasers Exchange Notes in exchange for Transfer Restricted Notes accepted for exchange in the Exchange Offer, which Exchange Notes shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Purchaser sells such a participation shall provide that such Purchaser shall retain not bear the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Restricted Notes or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject to paragraph (c)(ii) of this Section, the Issuer agrees that each Participant shall be entitled to the benefits of Sections 2.18 and 2.20 (subject to the limitations and requirements of such Sections and Section 2.22) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section and it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Purchaser, and if additional amounts are required to be paid pursuant to Section 2.20(a) or Section 2.20(c), to the Issuer and the Purchaser Representative). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Purchaser; provided that such Participant shall be subject to Section 2.21(c) as though it were a Purchaser.
(i) No Participant shall be entitled to receive any greater payment under Sections 2.18 or 2.20 than the participating Purchaser would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Issuer’s prior written consent (in its sole discretion), expressly acknowledging that such Participant’s entitlement to benefits under Sections 2.18 and 2.20 is not limited to what the participating Purchaser would have been entitled to receive absent the participation. Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, maintain a register on which it enters the name and address of each Participant and their respective successors and registered assignsLegend, and the principal and interest amounts of each Participant’s interest in Security Registrar shall rescind any restriction on the Notes or other obligations under the Note Documents (a “Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Note or any other obligation under any Note Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations or under Section 1.163 5(b) of the proposed U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner transfer of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Purchaser Representative (in its capacity as Purchaser Representative) shall have no responsibility for maintaining a Participant RegisterExchange Notes.
(d) (i) Any Purchaser may at any time pledge or transfer a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of such Purchaser, including without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Purchaser, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release any Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party hereto.
(i) No Purchaser may at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrumen
Appears in 2 contracts
Sources: Second Supplemental Indenture (TechnipFMC PLC), First Supplemental Indenture (TechnipFMC PLC)
Transfers of Notes. (a) The 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 9.01 and any applicable provisions of the Indenture. Any partial Transfer of an interest in a Note (other than to an existing Purchaser or by a Conduit Purchaser under a Support Facility, which may be in any amount) or a Commitment by a Purchaser shall be in respect of, at least $5,000,000 in the aggregate, which may be composed of (A) a portion of the outstanding principal balance of the Note funded or maintained by such Purchaser or (B) to the extent in excess of such portion of the outstanding principal balance of such Note, such Purchaser’s Commitment hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 9.01 and any applicable provisions of the Indenture will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation to any Person (each, a “Transferee”) unless the Transferee is a Permitted Transferee and prior to the Transfer, the Transferee shall have executed and delivered to the Agent and the Issuer a Transferee Certificate in substantially the form of Exhibit B to the Indenture.
(b) Each of the Issuer and Option One authorizes each 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 Confidential Information in the Purchaser’s possession concerning this Agreement or the Transaction Documents or concerning Option One, the Depositor, the Issuer, the Receivables or such party which has been delivered to such Purchaser pursuant to this Agreement or 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 Issuer or Option One in connection with such Purchaser’s credit evaluation of the Receivables, the Issuer or Option One prior to becoming a party to, or purchasing an interest in this Agreement or the Notes; provided, that prior to any such disclosure, such Transferee or Support Party or prospective Transferee or Support Party shall have agreed in writing to maintain the confidentiality of all Confidential Information provided to it in accordance with the provisions of this Agreement.
(c) Each Purchaser may, in accordance with applicable 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 Transaction Documents (each, a “Participation”), to any Permitted Transferee (each such Permitted Transferee, a “Participant”); provided, however, that no Participation shall be binding upon and inure granted to the benefit of the parties hereto and their respective successors and permitted assignsany Person unless; provided that (i) except as provided under Section 6.07the conditions to Transfer specified in this Agreement shall have been satisfied, and (ii) such Participation consists of a pro rata percentage interest in all payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes. In connection with any such Participation, each Purchaser shall maintain a register of each Participant and the amount of each related Participation. Each Purchaser hereby acknowledges and agrees that (A) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (B) none of the Indenture Trustee, the Issuer may not assign or otherwise transfer Option One shall have any obligation to have any communication or relationship with any Participant. Each Purchaser and each Participant shall comply with the provisions of Section 8.04(c) of this Agreement. No Participant shall be entitled to Transfer all or any portion of its rights or obligations hereunder Participation, without the prior written consent of each Purchaser (and any attempted assignment or transfer by the Issuer without such consent applicable Purchaser. Each Participant shall be null entitled to receive additional amounts and voidindemnification pursuant to Sections 8.01, 8.03 and 8.04 hereof as if such Participant were a Purchaser and such Sections applied to its Participation; provided, that, in the case of Section 8.04, such Participant has complied with the provisions of Section 8.04(c) hereof as if it were a Purchaser. Each Purchaser shall give the Agent 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) no to the extent such Participant has not otherwise directly provided such forms to the Issuer and the Indenture Trustee, (A) prior to the date on which the first interest payment is due to such Participant, such Participant will provide to the Issuer and Indenture Trustee, the forms described in Section 8.04(c) as though the Participant were a Purchaser, and (B) such Participant similarly will provide subsequent forms as described in Section 8.04(c) with respect to such Participant as though it were a Purchaser.
(d) Each Purchaser may transfer its rights or obligations hereunder except in accordance with the terms of this Section applicable law, sell or assign (any attempted transfer not complying with the terms of this Section shall be null and void andeach, with respect an “Assignment”) to any attempted transfer to any Disqualified InstitutionPermitted Transferee (each, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted transferees, to the extent provided in paragraph (ean “Assignee”) of this Section, Participants and, to the extent expressly contemplated hereby, the Related Parties of each of the Purchaser Representative and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Purchaser may transfer to one or more Eligible Transferees all or a portion any part of its Commitment (if any) or its interest in the Notes and its rights and obligations under this Agreement and the Transaction Documents pursuant to an agreement (including all or a portion of any Note or any Commitment) with “Transfer Supplement”), executed by such Assignee and the prior written consent of
(A) Purchaser and delivered to the Issuer (such consent not to be unreasonably withheld, conditioned or delayed)Agent; provided, that (x) the Issuer shall be deemed to have consented to any transfer of Notes (other than any such assignment to a Disqualified Institution) unless it has objected thereto by written notice to the Purchaser Representative within 10 Business Days after receipt of written notice thereof, (y) the consent of the Issuer shall not be required for any transfer of Notes or Commitments (1) to any Affiliate of such Purchaser or an Approved Fund of such Purchaser, in each case under this clause (1), to the extent the relevant transferee constitutes a Permitted Holder or (2) at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Issuer) exists; provided, further, that notwithstanding the foregoing, the Issuer may withhold its consent to any assignment to (1) any Person (other than a Competitor Debt Fund Affiliate, unless the Issuer has other reasonable grounds on which to withhold its consent) that is not a Disqualified Institution but is known by the Issuer to be an Affiliate of a Disqualified Institution regardless of whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name and/or (2) any Person, if the effect of such transfer would result in a change of control hereunder or under any other Indebtedness of the Issuer and/or any subsidiary thereof (including any First Lien Facility); and
(B) the Purchaser Representative (such consent not to be unreasonably withheld, conditioned or delayed); providedhowever, that no consent of the Purchaser Representative such assignment or sale shall be required for any transfer effective unless and until the conditions to another Purchaser, any Affiliate of a Purchaser or any Approved Fund.
(ii) Transfers Transfer specified in this Agreement shall be subject to the following additional conditions:
(A) except in the case of any transfer to another Purchaser, any Affiliate of any Purchaser or any Approved Fund or any transfer of the entire remaining amount of the relevant transferring Purchaser’s Notes or Commitments of any Class, the principal amount of Notes or Commitments of the transferring Purchaser subject to the relevant transfer (determined as of the date on which the Transfer Agreement with respect to such transfer is delivered to the Purchaser Representative and determined on an aggregate basis in the event of concurrent transfers to Related Funds or by Related Funds) shall not be less than $1,000,000 unless the Issuer and the Purchaser Representative otherwise consent;
(B) any partial transfer shall be made as a transfer of a proportionate part of all the relevant transferring Purchaser’s rights and obligations under this Agreement;
(C) the parties to each transfer shall execute and deliver to the Purchaser Representative a Transfer Agreement in the form attached as Exhibit A-1, together with a processing and recordation fee in the amount of $3,500; provided that the Purchaser Representative may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and
(D) the relevant Eligible Transferee, if it is not a Purchaser, shall deliver on or prior to the effective date of such assignment, to the Purchaser Representative (1) an Administrative Questionnaire and (2) any Internal Revenue Service form required under Section 2.20 and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(iii) Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from have been satisfied. From and after the effective date specified in any determined pursuant to such Transfer AgreementSupplement, (x) the Eligible Transferee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to provided in such Transfer AgreementSupplement, have the rights and obligations of a Purchaser under this Agreement, hereunder as set forth therein and (y) the transferring transferor Purchaser thereunder shall, to the extent of the interest transferred by provided in such Transfer AgreementSupplement, be released from its obligations under this Agreement (and, in the case of a Transfer Agreement covering all of the transferring Purchaser’s rights 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 cease have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to be a party hereto but shall continue to be (A) entitled amend this Agreement to the benefits of Sections 2.18extent, 2.20 and 9.03 with respect to facts and circumstances occurring on or prior only to the effective date extent, necessary to reflect the addition of such transfer Assignee and (B) subject to its obligations thereunder and under Section 9.13)the resulting adjustment of Commitment Interests arising from the Assignment.
(ive) The Purchaser RepresentativeUpon instruction to register a transfer of a Purchaser’s 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 a Transferee Certification, acting for this purpose as executed by the registered owner (and the beneficial owner if it is a non-fiduciary agent Person other than the registered owner), and receipt by the Indenture Trustee of the Issuer, shall maintain at one of its offices a copy of each the duly executed related Transfer Supplement and such other documents as may be required under this Agreement delivered to it and a register for or the recordation Indenture, such interest in the Notes (or portion thereof) shall be transferred in the records of the names and addresses of Indenture Trustee and, if requested by the Purchasers and their respective successors and assignsAssignee, and the commitment of, and principal amount of and interest on the new Notes owing to, each Purchaser pursuant shall be issued to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any error in such recordation, shall not affect the Issuer’s obligations in respect of such Notes. The entries in the Register shall be conclusive, absent manifest error, and the Issuer, the Purchaser Representative and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Issuer and each Purchaser (but only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Transfer Agreement executed by a transferring Purchaser and an Eligible Transferee, the Eligible Transferee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the transferee is already a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) of this SectionAssignee and, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section, the transferor Purchaser Representative shall promptly accept in amounts reflecting such Transfer Agreement and record the information contained therein in the Register. No transfer shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraphthe Indenture.
(vif) By executing and delivering a Transfer Agreement, Each Purchaser may pledge its interest in the transferring Purchaser and the Eligible Transferee thereunder shall be deemed to confirm and agree with each other and the other parties hereto as follows: (A) the transferring Purchaser warrants that it is the legal and beneficial owner of the interest being transferred thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances of its Notes, in each case without giving effect Notes to any transfer thereof which has not become effective, are Federal Reserve Bank as set forth in such Transfer Agreement, (B) except as set forth in clause (A) above, the transferring Purchaser makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Issuer or any Restricted Subsidiary or the performance or observance by the Issuer or any Restricted Subsidiary of any of its obligations under this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto; (C) the transferee represents and warrants that it is an Eligible Transferee, legally authorized to enter into such Transfer Agreement; (D) the transferee confirms that it has received a copy of this Agreement and each applicable Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Transfer Agreement; (E) the transferee will independently and without reliance upon the Purchaser Representative, the transferring Purchaser or any other Purchaser and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) the transferee appoints and authorizes the Purchaser Representative to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Purchaser Representative, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) the transferee agrees that it will perform collateral in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Purchaserapplicable law.
(cg) (i) Any Each Support Party shall be entitled to receive additional payments and indemnification pursuant to Sections 8.01, 8.03 and 8.04 hereof as though it were a Purchaser may, without the consent of the Issuer, the Purchaser Representative and such Section applied to its interest in or any other Purchaser, sell participations commitment to any bank or other entity (other than to any Disqualified Institution, any natural Person, any holder of Series A Preferred Shares (or any Affiliate of such holder) or, other than with respect to any participation to any Debt Fund Affiliate (any such participations to a Debt Fund Affiliate being subject to the limitation set forth acquire an interest in the first proviso of the final paragraph set forth in Section 9.05(g), as if the limitation applied to such participations), the Issuer or any of its Affiliates) (a “Participant”) in all or a portion of such Purchaser’s rights and obligations under this Agreement (including all or a portion of its commitments and the Notes owing to it)Notes; provided, that (A) such Purchaser’s obligations under this Agreement Support Party shall remain unchanged, (B) such Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Issuer, the Purchaser Representative and the other Purchasers shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Notes or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject to paragraph (c)(ii) of this Section, the Issuer agrees that each Participant shall not be entitled to the benefits additional payments pursuant to (i) Section 8.03 by reason of Sections 2.18 and 2.20 (subject Regulatory Changes which occurred prior to the limitations and date it became a Support Party or (ii) Section 8.04 attributable to its failure to satisfy the requirements of such Sections and Section 2.228.04(c) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section and it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Purchaser, and if additional amounts are required to be paid pursuant to Section 2.20(a) or Section 2.20(c), to the Issuer and the Purchaser Representative). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Purchaser; provided provided, further, that unless such Participant shall be subject Support Party is a Permitted Transferee or has been consented to Section 2.21(c) as though it were a Purchaser.
(i) No Participant by the Issuer, such Support Party shall be entitled to receive any greater payment under additional amounts pursuant to Sections 2.18 8.03 or 2.20 than 8.04 only to the participating extent that its related Conduit Purchaser would have been entitled to receive such amounts in the absence of the Commitment and Support Advances from such Support Party. The provisions of Section 8.03 shall apply to the Administrative Agent and to such of its Affiliates as may from time to time administer, make referrals to or otherwise provide services or support to the Conduit Purchasers (in each case as though such Administrative Agent or Affiliate were a Purchaser and such Section applied to its administration of or other provisions of services or support to such Conduit Purchaser in connection with the transactions contemplated by this Agreement), whether as an administrator, administrative agent, referral agent, managing agent or otherwise.
(h) Each Support Party claiming increased amounts described in Sections 8.03 or 8.04 hereof shall furnish, through its related Conduit Purchaser, to the Issuer, the Administrative Agent, the Indenture Trustee and the Agent a certificate setting forth the basis and amount of each request by such Support Party for any such amounts referred to in Sections 8.03 or 8.04, such certificate to be conclusive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Issuer’s prior written consent (in its sole discretion), expressly acknowledging that such Participant’s entitlement to benefits under Sections 2.18 and 2.20 is not limited to what the participating Purchaser would have been entitled to receive absent the participation. Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, maintain a register on which it enters the name and address of each Participant and their respective successors and registered assigns, and the principal and interest amounts of each Participant’s interest in the Notes or other obligations under the Note Documents (a “Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any factual information relating to any Participant’s interest in any Commitment, Note or any other obligation under any Note Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations or under Section 1.163 5(b) of the proposed U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive set forth therein absent manifest error, and each Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Purchaser Representative (in its capacity as Purchaser Representative) shall have no responsibility for maintaining a Participant Register.
(d) (i) Any Purchaser may at any time pledge or transfer a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of such Purchaser, including without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Purchaser, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release any Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party hereto.
(i) No Purchaser may at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrumen
Appears in 1 contract
Transfers of Notes. (a) The provisions of Each Restructuring Support Party shall not, from the Amended and Restated RSA Effective Date and for so long as this Agreement shall be binding upon and inure to has not been terminated in accordance with the benefit of the parties hereto and their respective successors and permitted assigns; provided that terms hereof, (i) except as provided under Section 6.07sell, the Issuer may not assign transfer, assign, pledge, grant a participation interest in, or otherwise transfer dispose of, directly or indirectly, its right, title, or interest in respect of any of its rights Notes, in whole or obligations hereunder without in part, or (ii) deposit any such Notes into a voting trust, or grant any proxies, or enter into a voting agreement with respect to any such claims or interests (the prior written consent of each Purchaser actions described in clauses (and any attempted assignment or transfer by the Issuer without such consent shall be null and voidi) and (ii) no Purchaser may transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted transfer not complying with the terms of this Section shall be null and void and, with respect are collectively referred to any attempted transfer to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted transferees, to the extent provided in paragraph (e) of this Section, Participants and, to the extent expressly contemplated hereby, the Related Parties of each of the Purchaser Representative herein as a “Transfer” and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject Restructuring Support Party making such Transfer is referred to herein as the conditions set forth in paragraph (b)(ii) below, any Purchaser may transfer to one or more Eligible Transferees all or a portion of its rights and obligations under this Agreement (including all or a portion of any Note or any Commitment) with the prior written consent of
(A) the Issuer (such consent not to be unreasonably withheld, conditioned or delayed); provided, that (x) the Issuer shall be deemed to have consented to any transfer of Notes (other than any such assignment to a Disqualified Institution) unless it has objected thereto by written notice to the Purchaser Representative within 10 Business Days after receipt of written notice thereof, (y) the consent of the Issuer shall not be required for any transfer of Notes or Commitments (1) to any Affiliate of such Purchaser or an Approved Fund of such Purchaser, in each case under this clause (1“Transferor”), to the extent the relevant transferee constitutes a Permitted Holder or (2) at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Issuer) exists; provided, further, that notwithstanding the foregoing, the Issuer may withhold its consent to any assignment to (1) any Person (other than a Competitor Debt Fund Affiliate, unless the Issuer has other reasonable grounds on which to withhold its consent) that such Transfer is not a Disqualified Institution but is known by the Issuer to be an Affiliate of a Disqualified Institution regardless of whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name and/or (2) any Person, if the effect of such transfer would result in a change of control hereunder or under any other Indebtedness of the Issuer and/or any subsidiary thereof (including any First Lien Facility); and
(B) the Purchaser Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided, that no consent of the Purchaser Representative shall be required for any transfer to another Purchaser, any Affiliate of a Purchaser or any Approved Fund.
(ii) Transfers shall be subject to the following additional conditions:
(A) except in the case of any transfer to another Purchaser, any Affiliate of any Purchaser or any Approved Fund or any transfer of the entire remaining amount of the relevant transferring Purchaser’s Notes or Commitments of any Class, the principal amount of Notes or Commitments of the transferring Purchaser subject to the relevant transfer (determined as of the date on which the Transfer Agreement with respect to such transfer is delivered to the Purchaser Representative and determined on an aggregate basis in the event of concurrent transfers to Related Funds or by Related Funds) shall not be less than $1,000,000 unless the Issuer and the Purchaser Representative otherwise consent;
(B) any partial transfer shall be made as a transfer of a proportionate part of all the relevant transferring Purchaser’s rights and obligations under this Agreement;
(C) the parties to each transfer shall execute and deliver to the Purchaser Representative a Transfer Agreement in the form attached as Exhibit A-1, together with a processing and recordation fee in the amount of $3,500; provided that the Purchaser Representative may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and
(D) the relevant Eligible Transferee, if it is not a Purchaser, shall deliver on or prior to the effective date of such assignment, to the Purchaser Representative (1) an Administrative Questionnaire and (2) any Internal Revenue Service form required under Section 2.20 and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(iii) Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in any Transfer Agreement, the Eligible Transferee thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to such Transfer Agreement, have the rights and obligations of a Purchaser under this Agreement, and the transferring Purchaser thereunder shall, to the extent of the interest transferred by such Transfer Agreement, be released from its obligations under this Agreement (and, in the case of a Transfer Agreement covering all of the transferring Purchaser’s rights and obligations under this Agreement, such Purchaser shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of Sections 2.18, 2.20 and 9.03 with respect to facts and circumstances occurring on or prior to the effective date of such transfer and (B) subject to its obligations thereunder and under Section 9.13).
(iv) The Purchaser Representative, acting for this purpose as a non-fiduciary agent of the Issuer, shall maintain at one of its offices a copy of each Transfer Agreement delivered to it and a register for the recordation of the names and addresses of the Purchasers and their respective successors and assigns, and the commitment of, and principal amount of and interest on the Notes owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any error in such recordation, shall not affect the Issuer’s obligations in respect of such Notes. The entries in the Register shall be conclusive, absent manifest error, and the Issuer, the Purchaser Representative and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Issuer and each Purchaser (but only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Transfer Agreement executed by a transferring Purchaser and an Eligible Transferee, the Eligible Transferee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the transferee is already a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section, the Purchaser Representative shall promptly accept such Transfer Agreement and record the information contained therein in the Register. No transfer shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) By executing and delivering a Transfer Agreement, the transferring Purchaser and the Eligible Transferee thereunder shall be deemed to confirm and agree with each other and the other parties hereto as follows: (A) the transferring Purchaser warrants that it is the legal and beneficial owner of the interest being transferred thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances of its Notes, in each case without giving effect to any transfer thereof which has not become effective, are as set forth in such Transfer Agreement, (B) except as set forth in clause (A) above, the transferring Purchaser makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Note Document Restructuring Support Party or any other instrument or document furnished pursuant hereto, or the financial condition of the Issuer or any Restricted Subsidiary or the performance or observance by the Issuer or any Restricted Subsidiary of any of its obligations under this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto; (C) the transferee represents and warrants entity that it is an Eligible Transferee, legally authorized first agrees in writing to enter into such Transfer Agreement; (D) the transferee confirms that it has received a copy of this Agreement and each applicable Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Transfer Agreement; (E) the transferee will independently and without reliance upon the Purchaser Representative, the transferring Purchaser or any other Purchaser and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) the transferee appoints and authorizes the Purchaser Representative to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Purchaser Representative, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) the transferee agrees that it will perform in accordance with their terms all the obligations which be bound by the terms of this Agreement are required (the “Transferee”) by executing and delivering to be performed by it Venoco and its counsel a Joinder substantially in the form attached hereto as Exhibit E (the “Joinder”). Upon consummation of a Purchaser.
(c) (i) Any Purchaser mayTransfer in accordance herewith, without the consent a transferee is deemed to make all of the Issuerrepresentations, warranties, and covenants of a Restructuring Support Party, as applicable, set forth in this Agreement. Upon compliance with the foregoing, the Purchaser Representative Transferor shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the extent of such transferred rights and obligations. Any Transfer made in violation of this Section 5(d) shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors and/or any Restructuring Support Party, and shall not create any obligation or liability of any Debtor or any other Purchaser, sell participations to any bank or other entity (other than to any Disqualified Institution, any natural Person, any holder of Series A Preferred Shares (or any Affiliate of such holder) or, other than with respect to any participation to any Debt Fund Affiliate (any such participations to a Debt Fund Affiliate being subject Restructuring Support Party to the limitation purported transferee. Notwithstanding the foregoing, the restrictions on Transfer set forth in the first proviso of the final paragraph set forth in Section 9.05(g), as if the limitation applied to such participations), the Issuer or any of its Affiliates) (a “Participant”) in all or a portion of such Purchaser’s rights and obligations under this Agreement (including all or a portion of its commitments and the Notes owing to it); provided, that (A) such Purchaser’s obligations under this Agreement shall remain unchanged, (B) such Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Issuer, the Purchaser Representative and the other Purchasers shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Notes or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject to paragraph (c)(ii) of this Section, the Issuer agrees that each Participant shall be entitled to the benefits of Sections 2.18 and 2.20 (subject to the limitations and requirements of such Sections and Section 2.22) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section and it being understood that the documentation required under Section 2.20(f5(d) shall be delivered to the participating Purchaser, and if additional amounts are required to be paid pursuant to Section 2.20(a) or Section 2.20(c), to the Issuer and the Purchaser Representative). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Purchaser; provided that such Participant shall be subject to Section 2.21(c) as though it were a Purchaser.
(i) No Participant shall be entitled to receive any greater payment under Sections 2.18 or 2.20 than the participating Purchaser would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Issuer’s prior written consent (in its sole discretion), expressly acknowledging that such Participant’s entitlement to benefits under Sections 2.18 and 2.20 is not limited to what the participating Purchaser would have been entitled to receive absent the participation. Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, maintain a register on which it enters the name and address of each Participant and their respective successors and registered assigns, and the principal and interest amounts of each Participant’s interest in the Notes or other obligations under the Note Documents (a “Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Note or any other obligation under any Note Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations or under Section 1.163 5(b) of the proposed U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Purchaser Representative (in its capacity as Purchaser Representative) shall have no responsibility for maintaining a Participant Register.
(d) (i) Any Purchaser may at any time pledge or transfer a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of such Purchaser, including without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Purchaser, and this Section 9.05 shall not apply to the grant of any such pledge liens or assignment encumbrances on any claims and interests in favor of a security interest; provided that no bank or broker-dealer holding custody of such pledge claims and interests in the ordinary course of business and which lien or assignment encumbrance is released upon the Transfer of a security interest shall release any Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party heretoclaims and interests.
(i) No Purchaser may at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrumen
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Transfers of Notes. (a) The provisions of Each Restructuring Support Party shall not, from the RSA Effective Date and for so long as this Agreement shall be binding upon and inure to has not been terminated in accordance with the benefit of the parties hereto and their respective successors and permitted assigns; provided that terms hereof, (i) except as provided under Section 6.07sell, the Issuer may not assign transfer, assign, pledge, grant a participation interest in, or otherwise transfer dispose of, directly or indirectly, its right, title, or interest in respect of any of its rights Notes, in whole or obligations hereunder without in part, or (ii) deposit any such Notes into a voting trust, or grant any proxies, or enter into a voting agreement with respect to any such claims or interests (the prior written consent of each Purchaser actions described in clauses (and any attempted assignment or transfer by the Issuer without such consent shall be null and voidi) and (ii) no Purchaser may transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted transfer not complying with the terms of this Section shall be null and void and, with respect are collectively referred to any attempted transfer to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted transferees, to the extent provided in paragraph (e) of this Section, Participants and, to the extent expressly contemplated hereby, the Related Parties of each of the Purchaser Representative herein as a “Transfer” and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject Restructuring Support Party making such Transfer is referred to herein as the conditions set forth in paragraph (b)(ii) below, any Purchaser may transfer to one or more Eligible Transferees all or a portion of its rights and obligations under this Agreement (including all or a portion of any Note or any Commitment) with the prior written consent of
(A) the Issuer (such consent not to be unreasonably withheld, conditioned or delayed); provided, that (x) the Issuer shall be deemed to have consented to any transfer of Notes (other than any such assignment to a Disqualified Institution) unless it has objected thereto by written notice to the Purchaser Representative within 10 Business Days after receipt of written notice thereof, (y) the consent of the Issuer shall not be required for any transfer of Notes or Commitments (1) to any Affiliate of such Purchaser or an Approved Fund of such Purchaser, in each case under this clause (1“Transferor”), to the extent the relevant transferee constitutes a Permitted Holder or (2) at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Issuer) exists; provided, further, that notwithstanding the foregoing, the Issuer may withhold its consent to any assignment to (1) any Person (other than a Competitor Debt Fund Affiliate, unless the Issuer has other reasonable grounds on which to withhold its consent) that such Transfer is not a Disqualified Institution but is known by the Issuer to be an Affiliate of a Disqualified Institution regardless of whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name and/or (2) any Person, if the effect of such transfer would result in a change of control hereunder or under any other Indebtedness of the Issuer and/or any subsidiary thereof (including any First Lien Facility); and
(B) the Purchaser Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided, that no consent of the Purchaser Representative shall be required for any transfer to another Purchaser, any Affiliate of a Purchaser or any Approved Fund.
(ii) Transfers shall be subject to the following additional conditions:
(A) except in the case of any transfer to another Purchaser, any Affiliate of any Purchaser or any Approved Fund or any transfer of the entire remaining amount of the relevant transferring Purchaser’s Notes or Commitments of any Class, the principal amount of Notes or Commitments of the transferring Purchaser subject to the relevant transfer (determined as of the date on which the Transfer Agreement with respect to such transfer is delivered to the Purchaser Representative and determined on an aggregate basis in the event of concurrent transfers to Related Funds or by Related Funds) shall not be less than $1,000,000 unless the Issuer and the Purchaser Representative otherwise consent;
(B) any partial transfer shall be made as a transfer of a proportionate part of all the relevant transferring Purchaser’s rights and obligations under this Agreement;
(C) the parties to each transfer shall execute and deliver to the Purchaser Representative a Transfer Agreement in the form attached as Exhibit A-1, together with a processing and recordation fee in the amount of $3,500; provided that the Purchaser Representative may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and
(D) the relevant Eligible Transferee, if it is not a Purchaser, shall deliver on or prior to the effective date of such assignment, to the Purchaser Representative (1) an Administrative Questionnaire and (2) any Internal Revenue Service form required under Section 2.20 and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(iii) Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in any Transfer Agreement, the Eligible Transferee thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to such Transfer Agreement, have the rights and obligations of a Purchaser under this Agreement, and the transferring Purchaser thereunder shall, to the extent of the interest transferred by such Transfer Agreement, be released from its obligations under this Agreement (and, in the case of a Transfer Agreement covering all of the transferring Purchaser’s rights and obligations under this Agreement, such Purchaser shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of Sections 2.18, 2.20 and 9.03 with respect to facts and circumstances occurring on or prior to the effective date of such transfer and (B) subject to its obligations thereunder and under Section 9.13).
(iv) The Purchaser Representative, acting for this purpose as a non-fiduciary agent of the Issuer, shall maintain at one of its offices a copy of each Transfer Agreement delivered to it and a register for the recordation of the names and addresses of the Purchasers and their respective successors and assigns, and the commitment of, and principal amount of and interest on the Notes owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any error in such recordation, shall not affect the Issuer’s obligations in respect of such Notes. The entries in the Register shall be conclusive, absent manifest error, and the Issuer, the Purchaser Representative and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Issuer and each Purchaser (but only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Transfer Agreement executed by a transferring Purchaser and an Eligible Transferee, the Eligible Transferee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the transferee is already a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section, the Purchaser Representative shall promptly accept such Transfer Agreement and record the information contained therein in the Register. No transfer shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) By executing and delivering a Transfer Agreement, the transferring Purchaser and the Eligible Transferee thereunder shall be deemed to confirm and agree with each other and the other parties hereto as follows: (A) the transferring Purchaser warrants that it is the legal and beneficial owner of the interest being transferred thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances of its Notes, in each case without giving effect to any transfer thereof which has not become effective, are as set forth in such Transfer Agreement, (B) except as set forth in clause (A) above, the transferring Purchaser makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Note Document Restructuring Support Party or any other instrument or document furnished pursuant hereto, or the financial condition of the Issuer or any Restricted Subsidiary or the performance or observance by the Issuer or any Restricted Subsidiary of any of its obligations under this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto; (C) the transferee represents and warrants entity that it is an Eligible Transferee, legally authorized first agrees in writing to enter into such Transfer Agreement; (D) the transferee confirms that it has received a copy of this Agreement and each applicable Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Transfer Agreement; (E) the transferee will independently and without reliance upon the Purchaser Representative, the transferring Purchaser or any other Purchaser and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) the transferee appoints and authorizes the Purchaser Representative to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Purchaser Representative, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) the transferee agrees that it will perform in accordance with their terms all the obligations which be bound by the terms of this Agreement are required (the “Transferee”) by executing and delivering to be performed by it Venoco and its counsel a Transferee Joinder substantially in the form attached hereto as Exhibit D (the “Transferee Joinder”). Upon consummation of a Purchaser.
(c) (i) Any Purchaser mayTransfer in accordance herewith, without the consent a transferee is deemed to make all of the Issuerrepresentations, warranties, and covenants of a Restructuring Support Party, as applicable, set forth in this Agreement. Upon compliance with the foregoing, the Purchaser Representative Transferor shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the extent of such transferred rights and obligations. Any Transfer made in violation of this Section 5(c) shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors and/or any Restructuring Support Party, and shall not create any obligation or liability of any Debtor or any other Purchaser, sell participations to any bank or other entity (other than to any Disqualified Institution, any natural Person, any holder of Series A Preferred Shares (or any Affiliate of such holder) or, other than with respect to any participation to any Debt Fund Affiliate (any such participations to a Debt Fund Affiliate being subject Restructuring Support Party to the limitation purported transferee. Notwithstanding the foregoing, the restrictions on Transfer set forth in the first proviso of the final paragraph set forth in Section 9.05(g), as if the limitation applied to such participations), the Issuer or any of its Affiliates) (a “Participant”) in all or a portion of such Purchaser’s rights and obligations under this Agreement (including all or a portion of its commitments and the Notes owing to it); provided, that (A) such Purchaser’s obligations under this Agreement shall remain unchanged, (B) such Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Issuer, the Purchaser Representative and the other Purchasers shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Notes or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject to paragraph (c)(ii) of this Section, the Issuer agrees that each Participant shall be entitled to the benefits of Sections 2.18 and 2.20 (subject to the limitations and requirements of such Sections and Section 2.22) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section and it being understood that the documentation required under Section 2.20(f5(c) shall be delivered to the participating Purchaser, and if additional amounts are required to be paid pursuant to Section 2.20(a) or Section 2.20(c), to the Issuer and the Purchaser Representative). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Purchaser; provided that such Participant shall be subject to Section 2.21(c) as though it were a Purchaser.
(i) No Participant shall be entitled to receive any greater payment under Sections 2.18 or 2.20 than the participating Purchaser would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Issuer’s prior written consent (in its sole discretion), expressly acknowledging that such Participant’s entitlement to benefits under Sections 2.18 and 2.20 is not limited to what the participating Purchaser would have been entitled to receive absent the participation. Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, maintain a register on which it enters the name and address of each Participant and their respective successors and registered assigns, and the principal and interest amounts of each Participant’s interest in the Notes or other obligations under the Note Documents (a “Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Note or any other obligation under any Note Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations or under Section 1.163 5(b) of the proposed U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Purchaser Representative (in its capacity as Purchaser Representative) shall have no responsibility for maintaining a Participant Register.
(d) (i) Any Purchaser may at any time pledge or transfer a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of such Purchaser, including without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Purchaser, and this Section 9.05 shall not apply to the grant of any such pledge liens or assignment encumbrances on any claims and interests in favor of a security interest; provided that no bank or broker-dealer holding custody of such pledge claims and interests in the ordinary course of business and which lien or assignment encumbrance is released upon the Transfer of a security interest shall release any Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party heretoclaims and interests.
(i) No Purchaser may at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrumen
Appears in 1 contract
Sources: Restructuring Support Agreement (DENVER PARENT Corp)