Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or 3.6(d), or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) so long as such Lender, in its sole discretion, determines that such designation is not materially disadvantageous to such Lender. (b) Any Lender may designate a Lending Office other than that set forth on Exhibit I and may assign all of its interests under the Financing Documents, and its Notes, to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of Borrower under Sections 3.4(d), 3.6(c), or 3.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a) or Section 3.6(b). (c) Each Lender shall use reasonable efforts to avoid or minimize any additional costs, taxes, expense or obligation which might otherwise be imposed on Borrower pursuant to Sections 3.4(d), 3.6(c) or 3.6(d) or as a result of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b); provided, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens unless Borrower shall provide such Lender with an indemnification for such additional costs in form and substance reasonably satisfactory to such Lender.
Appears in 4 contracts
Samples: Financing Agreement (First Wind Holdings Inc.), Financing Agreement (First Wind Holdings Inc.), Financing Agreement (First Wind Holdings Inc.)
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d2.4(d), 3.6(cSection 2.6(c) or 3.6(dSection 2.6(d), or to avoid the unavailability of any Loans or the determination of the an interest rate option under Section 3.6(a) or Section 3.6(b2.6(b) so long as such Lender, in its sole discretion, determines does not determine that such designation is not materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I and may assign all of its interests under the Financing Documents, and its Notes, to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of Borrower under Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(c), or 3.6(dSection 2.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a) or Section 3.6(b2.6(b).
(c) Each Lender shall use commercially reasonable efforts to avoid or minimize any additional costs, taxes, expense or obligation which might otherwise be imposed on Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(c) or 3.6(dSection 2.6(d) or as a result of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination of the an interest rate option under Section 3.6(a) or Section 3.6(b2.6(b); provided, however, that such efforts shall not cause the imposition on any Lender of any material additional costs or legal or regulatory burdens unless Borrower shall provide such Lender with an indemnification for such additional costs in form and substance reasonably satisfactory to such Lender.
(d) If (i) Borrower incurs any liability to a Lender under Section 2.4(d), Section 2.6(c) or Section 2.6(d), or (ii) any Loans or interest rate option shall become unavailable to Borrower under Section 2.6(b), or (iii) any Lender fails to fund its Proportionate Share of the Loans following the satisfaction of all conditions precedent to the relevant Borrowing set forth in Sections 3.1 and 3.2, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, (i) identify and designate a replacement Lender that shall be acceptable to the Agents and all other Lenders (except for the Lender subject to this Section 2.8(d)) and (ii) require the Lender subject to this Section 2.8(d) to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement and under the Loans and Commitments of the Lender being replaced hereunder to such replacement Lender designated by Borrower that shall irrevocably assume all those obligations (which replacement Lender may be another Lender, but shall not be an Affiliate of Borrower); provided, however, that the Lender being replaced hereunder shall have received payment of an amount equal to the Obligations owing to it (to the extent of the outstanding principal, accrued interest, fees and other amounts, as applicable, included in those Obligations) from the replacement Lender or the Borrower. A Lender subject to this Section 2.8(d) shall not be required to make any such assignment and delegation if, as a result of a waiver by such Lender of its right under this Agreement, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If a Lender refuses to be replaced pursuant to this Section 2.8(d), the Borrower shall not be obligated to pay such Lender any of the compensation referred to in this Section or any additional amounts incurred or accrued under Section 2.4(d), Section 2.6(b), Section 2.6(c) or Section 2.6(d) from and after the date in excess of those that would have been incurred for such replacement.
Appears in 1 contract
Samples: Financing Agreement (Central Vermont Public Service Corp)
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of the Borrower to such Lender under Section 3.4(d2.4(d), 3.6(c) Section 2.6(c), or 3.6(dSection 2.6(d), or to avoid the unavailability of any Loans or the determination of the interest rate a conversion under Section 3.6(a2.6(a) or Section 3.6(b2.6(b) so long as such Lender, in its sole discretion, determines does not determine that such designation is not materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I and may assign all of its interests under the Financing Documents, and its Notes, to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of the Borrower under Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(c), or 3.6(d) Section 2.6(d), or make Loans or an interest rate option a conversion unavailable pursuant to Section 3.6(a2.6(a) or Section 3.6(b2.6(b).
(c) Each Lender shall use reasonable efforts to avoid or minimize any additional costs, taxes, expense or obligation which might otherwise be imposed on the Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(c) Section 2.6(c), or 3.6(dSection 2.6(d) or as a result of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination of the interest rate a conversion under Section 3.6(a2.6(a) or Section 3.6(b2.6(b); provided, however, that such efforts shall not cause the imposition on any Lender of any material additional costs or legal or regulatory burdens unless the Borrower shall provide such Lender with an indemnification for such additional costs in form and substance reasonably satisfactory to such Lender.
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Alternate Office; Minimization of Costs. (a) To 1.1.1 If any Lender requests compensation under Section 2.9, to the extent reasonably possiblepossible upon the request of the Borrower, each Lender shall designate an alternative Lending Office with respect to its SOFR Loans and otherwise take any reasonable actions to reduce any liability of the Borrower to such any Lender under Section 3.4(dSections 2.7.4(a), 3.6(c) or 3.6(d)2.9.3, or 2.9.4 and 2.10, and to avoid the unavailability of any Type of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) 2.9.2 so long as (in the case of the designation of an alternative Lending Office) such Lender, in its sole discretionthe reasonable judgment of such Lender, determines that (a) such designation is not materially disadvantageous to such Lender.
Lender in any material respect and (b) Any such actions would eliminate or reduce liability to such Lender; provided that no Lender shall be required to designate an alternative Lending Office if such designation requires internal credit approval until such time as such Lender receives such internal credit approval. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or actions within thirty (30) days of demand thereof to the Borrower.
1.1.2 If and with respect to each occasion that (a) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 10.3 requires the consent of all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, (b) a Lender either makes a demand for compensation pursuant to Sections 2.7.4(a), 2.9.3 or 2.9.4 or is unable to fund SOFR Loans pursuant to Section 2.9.2 or (c) a Lender is a Defaulting Lender, then the Borrower may, at its sole expense, upon at least five (5) Business Days prior irrevocable written notice to each of such Lender and the Administrative Agent, in whole permanently replace all of the Loans and Commitments of such Lender and require such Lender to assign and delegate all of its interests, rights (other than its existing rights to payments pursuant to Sections 2.7.4(a), 2.9.3, 2.9.4 and 10, as applicable) and obligations under this Agreement and the related Loan Documents to one or more existing Lenders or new Lenders. Each such replacement Lender shall upon the effective date of replacement purchase the Borrower’s Obligations hereunder owed to such replaced Lender for the aggregate amount thereof and shall thereupon for all purposes become a “Lender” hereunder, and, if applicable, shall consent to the proposed amendment, waiver, discharge or termination. Such notice from the Borrower shall specify an effective date for the replacement of such Xxxxxx’s Loans and Commitments, which date shall not be later than the fourteenth (14th) day after the day such notice is given. On the effective date of any replacement of such Xxxxxx’s Loans and Commitments pursuant to this Section 2.11.2, the Borrower shall pay to the Administrative Agent for the account of such Lender (a) any fees due to such Lender to the date of such replacement, (b) the principal of and accrued interest on the principal amount of outstanding Loans held by such Lender to the date of such replacement (such amount to be represented by the purchase of the Borrower’s Obligations hereunder of such replaced Xxxxxx by the replacing Xxxxxx and not as a prepayment of such Loans) and (c) the amount or amounts due to such Lender pursuant to each of Sections 2.7.4(a), 2.9.3, 2.9.4 and 2.10, as applicable, and any other amount then payable hereunder to such Lender. The Borrower will remain liable to such replaced Lender for any Liquidation Costs that such Lender sustains or incurs as a consequence of the purchase of such Xxxxxx’s Loans (unless such Lender has defaulted on its obligation to fund a Loan hereunder or is a Defaulting Lender). Upon the effective date of the purchase of any Lender’s Loans owed to such Lender and termination of such Xxxxxx’s Commitments pursuant to this Section 2.11.2, such Lender shall cease to be a Lender hereunder. No such termination of any such Lender’s Commitments and the purchase of such Xxxxxx’s Loans pursuant to this Section 2.11.2 shall affect (i) any liability or obligation of the Borrower or any other Lender to such terminated Lender, or any liability or obligation of such terminated Lender to the Borrower or any other Lender, which accrued on or prior to the date of such termination, or (ii) such terminated Xxxxxx’s rights hereunder in respect of any such liability or obligation. Nothing in this Section shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. Notwithstanding the foregoing, any Lender that has been replaced as a Lender pursuant to this Section 2.11.2 and that is (or has an Affiliate that is) a party to a Secured Hedge Agreement shall have the right, but not the obligation, to novate to another Lender or an Affiliate thereof such Secured Hedge Agreements; and if such replaced Lender or its Affiliate, as applicable, has not exercised such right, then the Borrower may elect to cause such replaced Lender or its Affiliate to use commercially reasonable efforts, as applicable, to novate to another Lender or an Affiliate thereof all applicable Secured Hedge Agreements provided by such replaced Lender or its Affiliate, as applicable, subject to the satisfaction of the following conditions: (A) the parties shall enter into a novation agreement (based on the ISDA standard form novation agreement) in which the applicable Permitted Hedge Counterparty is the transferor and will act as the calculation agent and the Borrower is the remaining party; (B) the transferee shall be acceptable to such Permitted Hedge Counterparty in its absolute discretion, including subject to such Permitted Hedge Counterparty’s internal credit approval, other internal policies and regulatory considerations; (C) the pricing of such novation (including any payment to be made to such Permitted Hedge Counterparty and/or the transferee) shall be acceptable to such Permitted Hedge Counterparty in its absolute discretion; and (D) Borrower shall bear all costs and expenses (including legal costs and expenses) in relation to the novation agreement. If such replaced Xxxxxx is unable to novate, assign and delegate, without recourse, all its interests, rights and obligations under any Secured Hedge Agreement to which it is a party pursuant to documentation reasonably satisfactory to such Lender or Affiliate within sixty (60) days after such Xxxxxx’s replacement, despite the exercise of commercially reasonable efforts to do so, then such replaced Lender may terminate such Secured Hedge Agreement in accordance with its terms. For the avoidance of doubt and notwithstanding anything to the contrary herein, (i) a Lender shall have no obligation with respect to such assignment if such Lender determines in its reasonable discretion that such assignment would violate its internal credit policies, (ii) this Agreement (including this Section 2.11.2) does not in any way impair the rights of any Permitted Hedge Counterparty to terminate a Secured Hedge Agreement if an automatic termination event, event of default or other termination event occurs thereunder nor in any way impairs the rights of any Permitted Hedge Counterparty to otherwise terminate a Secured Hedge Agreement and upon a Permitted Hedge Counterparty exercising such rights of termination, any election by the Borrower to cause such Permitted Hedge Counterparty to novate its applicable Secured Hedge Agreement, including any Hedge Agreements thereunder, pursuant to the first sentence hereof shall be null and void. The Borrower shall bear all costs and expenses, and shall reimburse any Lender or its Affiliates for all costs and expenses incurred by such Lender or Affiliate, in connection with any assignment or novation of a Secured Hedge Agreement pursuant to this Section 2.11.2.
1.1.3 Upon written notice to the Administrative Agent, any Lender may designate a Lending Office other than that set forth on Exhibit I the Lending Office most recently designated to the Administrative Agent and may assign all of its interests under the Financing Documents, Loan Documents and its Notes, Notes (if any) to such Lending Office, ; provided that such designation and assignment do not at the time of such designation and assignment increase the liability or the reasonably foreseeable liability of the Borrower under Sections 3.4(d)Section 2.7.4, 3.6(c)2.9.3, 2.9.4 or 3.6(d) 2.10 or make Loans or an interest rate option unavailable pursuant to Section 3.6(a) or Section 3.6(b)2.9.2.
(c) Each Lender shall use reasonable efforts to avoid or minimize any additional costs, taxes, expense or obligation which might otherwise be imposed on Borrower pursuant to Sections 3.4(d), 3.6(c) or 3.6(d) or as a result of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b); provided, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens unless Borrower shall provide such Lender with an indemnification for such additional costs in form and substance reasonably satisfactory to such Lender.
Appears in 1 contract
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and LC Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(dSections 2.9(e), 3.6(c2.11(c) or 3.6(d2.11(d), or to avoid the unavailability of any Loans or the determination of the LC Loans or an interest rate option under Section 3.6(a) or Section 3.6(b2.11(b) so long as such Lender, in its sole discretion, determines does not determine that such designation is not illegal or materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I and may assign all of its interests under the Financing Credit Documents, and its Notes, to such Lending Office, provided that however, such designation and or assignment do shall not at render the time of such designation and assignment increase the reasonably foreseeable liability of Borrower under Sections 3.4(d), 3.6(c), Loans or 3.6(d) or make LC Loans or an interest rate option unavailable pursuant to hereunder and that any liability of Borrower under Section 3.6(a) or Section 3.6(b2.9(e), shall not exceed the amount otherwise payable at the time of such designation, if such designation had not been made.
(c) Each Lender shall use reasonable efforts to avoid or minimize any additional costs, taxes, expense or obligation which might otherwise be imposed on Borrower pursuant to Sections 3.4(d2.9(e), 3.6(c) 2.11(c), or 3.6(d2.11(d) or as a result of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination of the LC Loans or an interest rate option under Section 3.6(a2.11(a) or Section 3.6(b2.11(b); provided, however, that such efforts shall not cause the imposition on any Lender of any material additional costs (as determined in such Lender’s sole discretion) or legal or regulatory burdens (unless Borrower shall provide such Lender with an indemnification for such additional costs in form and substance reasonably satisfactory to such Lender).
Appears in 1 contract
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or 3.6(d), or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) so long as such Lender, in its sole discretion, determines that such designation is not materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I in Annex 2 and may assign all of its interests under the Financing Documents, and its NotesNotes (if any), to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of the Borrower under Sections 3.4(dSection 2.4(d), 3.6(c), or 3.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a2.6(a) or Section 3.6(b2.6(b).
(cb) Each If the Borrower is required to pay additional amounts under Section 2.4(d) or any Lender shall requests compensation under Section 2.6(a) or Section 2.6(b), then such Lender shall, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would avoid or minimize any additional costs, taxes, expense or obligation which might would otherwise be imposed on the Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(a) or 3.6(d) Section 2.6(b); provided, however, that no Lender shall be required to take any such action that, as determined by such Lender in its sole discretion, would adversely affect the making, issuing, funding or as a result maintaining of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination interests of the interest rate under Section 3.6(a) or Section 3.6(b)such Lender; provided, further, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens expenses, unless the Borrower shall provide such Lender with an indemnification for agrees to pay such additional costs and expenses.
(c) If (i) the Borrower incurs any liability to a Lender under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (ii) any Lender is a Defaulting Lender, then the Borrower, at its sole expense (including with respect to the processing and recordation fee referred to in form and substance reasonably satisfactory Section 10.4) may, upon notice to such Lender and the Administrative Agent require the Lender subject to this Section 2.8(c) to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement and under the Loans and Commitments of the Lender being replaced hereunder to an Eligible Assignee that shall assume all those rights and obligations; provided, however, that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other governmental authority having valid jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, and (z) the Borrower or such assignee shall have paid to the replaced Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender plus *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Sections 2.6 and 2.7). A Lender subject to this Section 2.8(c) shall not be required to make any such assignment and delegation if (A) prior to any such assignment and delegation the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply (including as a result of any action taken by such Lender pursuant to clause (b) above), (B) if such Lender shall waive its right to claim compensation or payment under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (C) if any Default or Event of Default then exists. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.8(c). Nothing in this Section 2.8 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. The Administrative Agent and each Lender hereby agree to cooperate with the Borrower to effectuate the assignment of any Defaulting Lender’s interest hereunder.
Appears in 1 contract
Samples: Loan Agreement (Vivint Solar, Inc.)
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or 3.6(d), or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) so long as such Lender, in its sole discretion, determines that such designation is not materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I Annex 2 and may assign all of its interests under the Financing Documents, and its NotesNotes (if any), to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of Borrower under Sections 3.4(dSection 2.4(d), 3.6(c), or 3.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a2.6(a) or Section 3.6(b2.6(b).
(cb) Each If the Borrower is required to pay additional amounts under Section 2.4(d) or any Lender shall requests compensation under Section 2.6(a) or Section 2.6(b), then such Lender shall, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would avoid or minimize any additional costs, taxes, expense or obligation which might would otherwise be imposed on Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(a) or 3.6(d) Section 2.6(b); provided, however, that no Lender shall be required to take any such action that, as determined by such Lender in its sole discretion, would adversely affect the making, issuing, funding or as a result maintaining of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination interests of the interest rate under Section 3.6(a) or Section 3.6(b)such Lender; provided, further, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens expenses, unless Borrower shall provide such Lender with an indemnification for agrees to pay such additional costs and expenses. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(c) If (i) Borrower incurs any liability to a Lender under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (ii) any Lender is a Defaulting Lender, then the Borrower, at its sole expense (including with respect to the processing and recordation fee referred to in form and substance reasonably satisfactory Section 10.4(b)) may, upon notice to such Lender and the Administrative Agent require the Lender subject to this Section 2.8(c) to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement and under the Loans and Commitments of the Lender being replaced hereunder to an Eligible Assignee that shall assume all those rights and obligations; provided, however, that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other governmental authority having valid jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, and (z) the Borrower or such assignee shall have paid to the replaced Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Sections 2.6 and 2.7). A Lender subject to this Section 2.8(c) shall not be required to make any such assignment and delegation if (A) prior to any such assignment and delegation the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply (including as a result of any action taken by such Lender pursuant to clause (b) above), (B) if such Lender shall waive its right to claim compensation or payment under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (C) if any Default or Event of Default then exists. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.8(c). Nothing in this Section 2.8 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. The Administrative Agent and each Lender hereby agree to cooperate with Borrower to effectuate the assignment of any Defaulting Lender’s interest hereunder.
(d) Any Lender that has been replaced as a Lender pursuant to Section 2.8(c) and that is a party to a Permitted Swap Agreement shall use commercially reasonable efforts to promptly novate, assign and delegate, without recourse, all of its interests, rights and obligations under such Permitted Swap Agreement to which it is a party, on the same terms and conditions, to the assignee replacing it as a Lender hereunder pursuant to Section 2.8(c) or to another Lender or Affiliate thereof, which, in either case, shall be a Permitted Swap Counterparty. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or 3.6(d), or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) so long as such Lender, in its sole discretion, determines that such designation is not materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I in Annex 2 and may assign all of its interests under the Financing Documents, and its NotesNotes (if any), to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of the Borrower under Sections 3.4(dSection 2.4(d), 3.6(c), or 3.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a2.6(a) or Section 3.6(b2.6(b).
(cb) Each If the Borrower is required to pay additional amounts under Section 2.4(d) or any Lender shall requests compensation under Section 2.6(a) or Section 2.6(b), then such Lender shall, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would avoid or minimize any additional costs, taxes, expense or obligation which might would otherwise be imposed on the Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(a) or 3.6(d) Section 2.6(b); provided, however, that no Lender shall be required to take any such action that, as determined by such Lender in its sole discretion, would adversely affect the making, issuing, funding or as a result maintaining of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination interests of the interest rate under Section 3.6(a) or Section 3.6(b)such Lender; provided, further, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens expenses, unless the Borrower shall provide such Lender with an indemnification for agrees to pay such additional costs and expenses.
(c) If (i) the Borrower incurs any liability to a Lender under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (ii) any Lender is a Defaulting Lender, then the Borrower, at its sole expense (including with respect to the processing and recordation fee referred to in form and substance reasonably satisfactory Section 10.4) may, upon notice to such Lender and the Administrative Agent require the Lender subject to this Section 2.8(c) to assign and delegate, without recourse, all its interests, rights and obligations under [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. this Agreement and under the Loans and Commitments of the Lender being replaced hereunder to an Eligible Assignee that shall assume all those rights and obligations; provided, however, that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other governmental authority having valid jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, and (z) the Borrower or such assignee shall have paid to the replaced Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Sections 2.6 and 2.7). A Lender subject to this Section 2.8(c) shall not be required to make any such assignment and delegation if (A) prior to any such assignment and delegation the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply (including as a result of any action taken by such Lender pursuant to clause (b) above), (B) if such Lender shall waive its right to claim compensation or payment under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (C) if any Default or Event of Default then exists. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.8(c). Nothing in this Section 2.8 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. The Administrative Agent and each Lender hereby agree to cooperate with the Borrower to effectuate the assignment of any Defaulting Lender’s interest hereunder.
Appears in 1 contract
Samples: Loan Agreement (Vivint Solar, Inc.)
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and to reduce any liability of Borrower to such Person under Sections 2.7(d), 2.8(c) or 2.8(d), or to avoid the unavailability of any Loans or an interest rate option under Section 2.8(b) so long as such Person, in its reasonable discretion, does not determine that such designation is disadvantageous to such Person. To the extent reasonably possible, each such Person shall otherwise take any reasonable actions to reduce any liability of Borrower to such Lender Person under Section 3.4(dSections 2.7(d), 3.6(c2.8(c) or 3.6(d2.8(d), or to avoid the unavailability of any Loans or the determination of the an interest rate option under Section 3.6(a) or Section 3.6(b2.8(b) so long as such LenderPerson, in its sole reasonable discretion, determines does not determine that such designation action is not materially disadvantageous to such LenderPerson.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I and may assign all of its interests under the Financing Documents, and its Notes, to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of Borrower under Sections 3.4(d2.7(d), 3.6(c), 2.8(c) or 3.6(d2.8(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a) or Section 3.6(b2.8(b).
(c) Each Lender shall use reasonable efforts to avoid or minimize any additional costs, taxes, expense or obligation which might otherwise be imposed on Borrower pursuant to Sections 3.4(d2.7(d), 3.6(c2.8(c) or 3.6(d2.8(d) or as a result of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination of the an interest rate option under Section 3.6(a) or Section 3.6(b2.8(b); provided, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens unless Borrower shall provide such Lender with an indemnification for such additional costs in form and substance reasonably satisfactory to such Lender and shall not in any respect other than such indemnified costs or burdens be disadvantageous to such Lender.
Appears in 1 contract
Alternate Office; Minimization of Costs. (a) To 1.1.1 If any Lender requests compensation under Section 2.9, to the extent reasonably possiblepossible upon the request of the Borrower, each Lender shall designate an alternative Lending Office with respect to its SOFR Loans and otherwise take any reasonable actions to reduce any liability of the Borrower to such any Lender under Section 3.4(dSections 2.7.4(a), 3.6(c) or 3.6(d)2.9.3, or 2.9.4 and 2.10, and to avoid the unavailability of any Type of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) 2.9.2 so long as (in the case of the designation of an alternative Lending Office) such Lender, in its sole discretionthe reasonable judgment of such Lender, determines that (a) such designation is not materially disadvantageous to such Lender.
Lender in any material respect and (b) Any such actions would eliminate or reduce liability to such Lender; provided that no Lender shall be required to designate an alternative Lending Office if such designation requires internal credit approval until such time as such Lender receives such internal credit approval. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or actions within thirty (30) days of demand thereof to the Borrower.
1.1.2 If and with respect to each occasion that (a) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 10.3 requires the consent of all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, (b) a Lender either makes a demand for compensation pursuant to Sections 2.7.4(a), 2.9.3 or 2.9.4 or is unable to fund SOFR Loans pursuant to Section 2.9.2 or (c) a Lender is a Defaulting Lender, then the Borrower may, at its sole expense, upon at least five (5) Business Days prior irrevocable written notice to each of such Lender and the Administrative Agent, in whole permanently replace all of the Loans and Commitments of such Lender and require such Lender to assign and delegate all of its interests, rights (other than its existing rights to payments pursuant to Sections 2.7.4(a), 2.9.3, 2.9.4 and 10, as applicable) and obligations under this Agreement and the related Loan Documents to one or more existing Lenders or new Lenders. Each such replacement Lender shall upon the effective date of replacement purchase the Borrower’s Obligations hereunder owed to such replaced Lender for the aggregate amount thereof and shall thereupon for all purposes become a “Lender” hereunder, and, if applicable, shall consent to the proposed amendment, waiver, discharge or termination. Such notice from the Borrower shall specify an effective date for the replacement of such Xxxxxx’s Loans and Commitments, which date shall not be later than the fourteenth (14th) day after the day such notice is given. On the effective date of any replacement of such Xxxxxx’s Loans and Commitments pursuant to this Section 2.11.2, the Borrower shall pay to the Administrative Agent for the account of such Lender (a) any fees due to such Lender to the date of such replacement, (b) the principal of and accrued interest on the principal amount of outstanding Loans held by such Lender to the date of such replacement (such amount to be represented by the purchase of the Borrower’s Obligations hereunder of such replaced Lender by the replacing Lender and not as a prepayment of such Loans) and (c) the amount or amounts due to such Lender pursuant to each of Sections 2.7.4(a), 2.9.3, 2.9.4 and 2.10, as applicable, and any other amount then payable hereunder to such Xxxxxx. The Borrower will remain liable to such replaced Lender for any Liquidation Costs that such Lender sustains or incurs as a consequence of the purchase of such Xxxxxx’s Loans (unless such Lender has defaulted on its obligation to fund a Loan hereunder or is a Defaulting Lender). Upon the effective date of the purchase of any Lender’s Loans owed to such Lender and termination of such Xxxxxx’s Commitments pursuant to this Section 2.11.2, such Lender shall cease to be a Lender hereunder. No such termination of any such Xxxxxx’s Commitments and the purchase of such Xxxxxx’s Loans pursuant to this Section 2.11.2 shall affect (i) any liability or obligation of the Borrower or any other Lender to such terminated Lender, or any liability or obligation of such terminated Lender to the Borrower or any other Lender, which accrued on or prior to the date of such termination, or (ii) such terminated Xxxxxx’s rights hereunder in respect of any such liability or obligation. Nothing in this Section shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. Notwithstanding the foregoing, any Lender that has been replaced as a Lender pursuant to this Section 2.11.2 and that is (or has an Affiliate that is) a party to a Secured Hedge Agreement shall have the right, but not the obligation, to novate to another Lender or an Affiliate thereof such Secured Hedge Agreements; and if such replaced Lender or its Affiliate, as applicable, has not exercised such right, then the Borrower may elect to cause such replaced Lender or its Affiliate to use commercially reasonable efforts, as applicable, to novate to another Lender or an Affiliate thereof all applicable Secured Hedge Agreements provided by such replaced Lender or its Affiliate, as applicable, subject to the satisfaction of the following conditions: (A) the parties shall enter into a novation agreement (based on the ISDA standard form novation agreement) in which the applicable Permitted Hedge Counterparty is the transferor and will act as the calculation agent and the Borrower is the remaining party; (B) the transferee shall be acceptable to such Permitted Hedge Counterparty in its absolute discretion, including subject to such Permitted Hedge Counterparty’s internal credit approval, other internal policies and regulatory considerations; (C) the pricing of such novation (including any payment to be made to such Permitted Hedge Counterparty and/or the transferee) shall be acceptable to such Permitted Hedge Counterparty in its absolute discretion; and (D) Borrower shall bear all costs and expenses (including legal costs and expenses) in relation to the novation agreement. If such replaced Xxxxxx is unable to novate, assign and delegate, without recourse, all its interests, rights and obligations under any Secured Hedge Agreement to which it is a party pursuant to documentation reasonably satisfactory to such Lender or Affiliate within sixty (60) days after such Xxxxxx’s replacement, despite the exercise of commercially reasonable efforts to do so, then such replaced Lender may terminate such Secured Hedge Agreement in accordance with its terms. For the avoidance of doubt and notwithstanding anything to the contrary herein, (i) a Lender shall have no obligation with respect to such assignment if such Lender determines in its reasonable discretion that such assignment would violate its internal credit policies, (ii) this Agreement (including this Section 2.11.2) does not in any way impair the rights of any Permitted Hedge Counterparty to terminate a Secured Hedge Agreement if an automatic termination event, event of default or other termination event occurs thereunder nor in any way impairs the rights of any Permitted Hedge Counterparty to otherwise terminate a Secured Hedge Agreement and upon a Permitted Hedge Counterparty exercising such rights of termination, any election by the Borrower to cause such Permitted Hedge Counterparty to novate its applicable Secured Hedge Agreement, including any Hedge Agreements thereunder, pursuant to the first sentence hereof shall be null and void. The Borrower shall bear all costs and expenses, and shall reimburse any Lender or its Affiliates for all costs and expenses incurred by such Lender or Affiliate, in connection with any assignment or novation of a Secured Hedge Agreement pursuant to this Section 2.11.2.
1.1.3 Upon written notice to the Administrative Agent, any Lender may designate a Lending Office other than that set forth on Exhibit I the Lending Office most recently designated to the Administrative Agent and may assign all of its interests under the Financing Documents, Loan Documents and its Notes, Notes (if any) to such Lending Office, ; provided that such designation and assignment do not at the time of such designation and assignment increase the liability or the reasonably foreseeable liability of the Borrower under Sections 3.4(d)Section 2.7.4, 3.6(c)2.9.3, 2.9.4 or 3.6(d) 2.10 or make Loans or an interest rate option unavailable pursuant to Section 3.6(a) or Section 3.6(b)2.9.2.
(c) Each Lender shall use reasonable efforts to avoid or minimize any additional costs, taxes, expense or obligation which might otherwise be imposed on Borrower pursuant to Sections 3.4(d), 3.6(c) or 3.6(d) or as a result of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b); provided, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens unless Borrower shall provide such Lender with an indemnification for such additional costs in form and substance reasonably satisfactory to such Lender.
Appears in 1 contract
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or 3.6(d), or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) so long as such Lender, in its sole discretion, determines that such designation is not materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I Annex 2 and may assign all of its interests under the Financing Documents, and its NotesNotes (if any), to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of the Borrower under Sections 3.4(dSection 2.4(d), 3.6(c), or 3.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a2.6(a) or Section 3.6(b2.6(b).
(cb) Each If the Borrower is required to pay additional amounts under Section 2.4(d) or any Lender shall requests compensation under Section 2.6(a) or Section 2.6(b), then such Lender shall, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would avoid or minimize any additional costs, taxes, expense or obligation which might would otherwise be imposed on the Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(a) or 3.6(d) Section 2.6(b); provided, however, that no Lender shall be required to take any such action that, as determined by such Lender in its sole discretion, would adversely affect the making, issuing, funding or as a result maintaining of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination interests of the interest rate under Section 3.6(a) or Section 3.6(b)such Lender; provided, further, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens expenses, unless the Borrower shall provide such Lender with an indemnification for agrees to pay such additional costs and expenses.
(c) If (i) the Borrower incurs any liability to a Lender under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (ii) any Lender is a Defaulting Lender, then the Borrower, at its sole expense (including with respect to the processing and recordation fee referred to in form and substance reasonably satisfactory Section 10.4) may, upon notice to such Lender and the Administrative Agent require the Lender subject to this Section 2.8(c) to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement and under the Loans and Commitments of the Lender being replaced hereunder to an Eligible Assignee that shall assume all those rights and obligations; provided, however, that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other governmental authority having valid jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, and (z) the Borrower or such assignee shall have paid to the replaced Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Sections 2.6 and 2.7). A Lender subject to this Section 2.8(c) shall not be required to make any such assignment and delegation if (A) prior to any such assignment and delegation the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply (including as a result of any action taken by such Lender pursuant to clause (b) above), (B) if such Lender shall waive its right to claim compensation or payment under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (C) if any Default or Event of Default then exists. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.8(c). Nothing in this Section 2.8 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. The Administrative Agent and each Lender hereby agree to cooperate with the Borrower to effectuate the assignment of any Defaulting Lender’s interest hereunder. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Alternate Office; Minimization of Costs. (a) To [***] Confidential treatment has been requested for the extent reasonably possible, each Lender shall designate an alternative Lending Office bracketed portions. The confidential redacted portion has been omitted and filed separately with respect to its Loans the Securities and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or 3.6(d), or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) so long as such Lender, in its sole discretion, determines that such designation is not materially disadvantageous to such LenderExchange Commission.
(ba) Any Lender may designate a Lending Office other than that set forth on Exhibit I Annex 2 and may assign all of its interests under the Financing Documents, and its NotesNotes (if any), to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of the Borrower under Sections 3.4(dSection 2.4(d), 3.6(c), or 3.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a2.6(a) or Section 3.6(b2.6(b).
(cb) Each If the Borrower is required to pay additional amounts under Section 2.4(d) or any Lender shall requests compensation under Section 2.6(a) or Section 2.6(b), then such Lender shall, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would avoid or minimize any additional costs, taxes, expense or obligation which might would otherwise be imposed on the Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(a) or 3.6(d) Section 2.6(b); provided, however, that no Lender shall be required to take any such action that, as determined by such Lender in its sole discretion, would adversely affect the making, issuing, funding or as a result maintaining of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination interests of the interest rate under Section 3.6(a) or Section 3.6(b)such Lender; provided, further, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens expenses, unless the Borrower shall provide such Lender with an indemnification for agrees to pay such additional costs and expenses.
(c) If (i) the Borrower incurs any liability to a Lender under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (ii) any Lender is a Defaulting Lender, then the Borrower, at its sole expense (including with respect to the processing and recordation fee referred to in form and substance reasonably satisfactory Section 10.4) may, upon notice to such Lender and the Administrative Agent require the Lender subject to this Section 2.8(c) to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement and under the Loans and Commitments of the Lender being replaced hereunder to an Eligible Assignee that shall assume all those rights and obligations; provided, however, that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other governmental authority having valid jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, and (z) the Borrower or such assignee shall have paid to the replaced Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Sections 2.6 and 2.7). A Lender subject to this Section 2.8(c) shall not be required to make any such assignment and delegation if (A) prior to any such assignment and delegation the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply (including as a result of any action taken by such Lender pursuant to clause (b) above), (B) if such Lender shall waive its right to claim compensation or payment under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (C) if any Default or Event of Default then exists. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.8(c). Nothing in this Section 2.8 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. The Administrative Agent and each Lender hereby agree to cooperate with the Borrower to effectuate the assignment of any Defaulting Lender’s interest hereunder. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Alternate Office; Minimization of Costs. (a) To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Loans and otherwise take any reasonable actions to reduce any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or 3.6(d), or to avoid the unavailability of Loans or the determination of the interest rate under Section 3.6(a) or Section 3.6(b) so long as such Lender, in its sole discretion, determines that such designation is not materially disadvantageous to such Lender.
(b) Any Lender may designate a Lending Office other than that set forth on Exhibit I Annex 2 and may assign all of its interests under the Financing Documents, and its NotesNotes (if any), to such Lending Office, provided that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable liability of Borrower under Sections 3.4(dSection 2.4(d), 3.6(c), or 3.6(d) or make Loans or an interest rate option unavailable pursuant to Section 3.6(a2.6(a) or Section 3.6(b2.6(b).
(cb) Each If the Borrower is required to pay additional amounts under Section 2.4(d) or any Lender shall requests compensation under Section 2.6(a) or Section 2.6(b), then such Lender shall, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (x) file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would avoid or minimize any additional costs, taxes, expense or obligation which might would otherwise be imposed on Borrower pursuant to Sections 3.4(dSection 2.4(d), 3.6(cSection 2.6(a) or 3.6(d) Section 2.6(b); provided, however, that no Lender shall be required to take any such action that, as determined by such Lender in its sole discretion, would adversely affect the making, issuing, funding or as a result maintaining of such Lender being subject to a Reserve Requirement or to avoid the unavailability of Loans or the determination interests of the interest rate under Section 3.6(a) or Section 3.6(b)such Lender; provided, further, however, that such efforts shall not cause the imposition on any Lender of any additional costs or legal or regulatory burdens expenses, unless Borrower shall provide such Lender with an indemnification for agrees to pay such additional costs and expenses.
(c) If (i) Borrower incurs any liability to a Lender under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (ii) any Lender is a Defaulting Lender, then the Borrower, at its sole expense (including with respect to the processing and recordation fee referred to in form and substance reasonably satisfactory Section 9.14(a)) may, upon notice to such Lender and the Administrative Agent require the Lender subject to this Section 2.8(c) to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement and under the Loans and Commitments of the Lender being replaced hereunder to an Eligible Assignee that shall assume all those rights and obligations; provided, however, that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other governmental authority having valid jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, and (z) the Borrower or such assignee shall have paid to the replaced Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Sections 2.6 and 2.7). A Lender subject to this Section 2.8(c) shall not be required to make any such assignment and delegation if (A) prior to any such assignment and delegation the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply (including as a result of any action taken by such Lender pursuant to clause (b) above), (B) if such Lender shall waive its right to claim compensation or payment under Section 2.4(d), Section 2.6(a) or Section 2.6(b) or (C) if any Default or Event of Default then exists. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and Trapper Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.8(c). Nothing in this Section 2.8 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. The Administrative Agent and each Lender hereby agree to cooperate with Borrower to effectuate the assignment of any Defaulting Lender’s interest hereunder.
(d) Any Lender that has been replaced as a Lender pursuant to Section 2.8(c) and that is a party to a Permitted Swap Agreement shall use commercially reasonable efforts to promptly novate, assign and delegate, without recourse, all of its interests, rights and obligations under such Permitted Swap Agreement to which it is a party, on the same terms and conditions, to the assignee replacing it as a Lender hereunder pursuant to Section 2.8(c) or to another Lender or Affiliate thereof, which, in either case, shall be a Permitted Swap Counterparty.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
