Servicer May Own Notes or Certificates The Servicer, and any Affiliate of the Servicer, may, in its individual or any other capacity, become the owner or pledgee of Notes or Certificates with the same rights as it would have if it were not the Servicer or an Affiliate thereof, except as otherwise expressly provided herein or in the other Basic Documents. Except as set forth herein or in the other Basic Documents, Notes and Certificates so owned by or pledged to the Servicer or such Affiliate shall have an equal and proportionate benefit under the provisions of this Agreement, without preference, priority or distinction as among all of the Notes and Certificates.
SALE/PURCHASE OF ADDITIONAL LOANS AND SUBSTITUTION OF SUBSTITUTED LOANS (A) Requirements Relating to Additional Loans From time to time during the Supplemental Purchase Period, SLM ECFC may, but shall not be obligated to, sell Eligible Loans to Funding, and Funding may (but only to the extent that the Eligible Loans are contemporaneously sold to the Eligible Lender Trustee on behalf of the Trust in accordance with the Sale Agreement and the related Additional Sale Agreement) purchase such Additional Loans from SLM ECFC at the related Additional Loans Purchase Price set forth in the related Additional Purchase Agreement. In addition, at any time, SLM ECFC may transfer Substituted Loans to Funding in satisfaction of any Loan repurchase obligations hereunder. The sale and purchase (or substitution) of Additional Loans (or Substituted Loans) pursuant to an Additional Purchase Agreement shall be consummated as set forth in this Section 3.2.
Optional Payments and Modifications of Certain Debt Instruments (a) Make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption of (including any “call,” open market purchase or cash payment in connection with the Borrower’s election to cash settle or “net share” settle in connection with a “conversion” requirement under any Convertible Notes) or otherwise optionally or voluntarily defease or segregate funds with respect to any Junior Financing except (i) pursuant to Restricted Payments permitted by Section 8.6(f), (g), (h), (i), (k) and (l), (ii) with the proceeds of other Junior Indebtedness pursuant to a Permitted Refinancing or (iii) the conversion of any Junior Financing to Capital Stock (other than Disqualified Capital Stock that is not permitted hereunder) including payments permitted under Section 8.6(h) in connection therewith; provided that nothing in this Section 8 shall restrict the Group Members from repaying intercompany loans so long as such repayments are in accordance with the terms of the Intercompany Note, if applicable; provided further that with respect to the Convertible Notes,
(A) the 2026 Convertible Notes may be converted into the right to receive cash in accordance with the conversion provisions of the 2026 Convertible Notes Indenture (and the Borrower may pay cash settlements to the holders of the 2026 Convertible Notes in accordance with the 2026 Convertible Notes Indenture); and
(B) the 2026 Convertible Notes may be redeemed or repurchased in connection with the “call” provisions set forth in Section 3.01 of the 2026 Convertible Notes Indenture pursuant to the terms thereof.
(b) Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any Junior Financing other than any amendment that is not (i) materially adverse to the Borrower and the Restricted Subsidiaries and/or the Secured Parties or (ii) more onerous in any material respect than the existing applicable provisions in the Junior Financing or the applicable provision set forth in this Agreement, in each case as determined by the board of directors (including an authorized committee thereof) of the Borrower in good faith; provided that, for the avoidance of doubt, in no event shall any such amendment, modification or change shorten the maturity or average life to maturity of any Junior Financing (or any Permitted Refinancings thereof), require any payment with respect thereto sooner than previously scheduled, increase the interest rate or fees applicable thereto or grant collateral as security thereof.
(c) Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any Organizational Document of any Restricted Subsidiary if such amendment, modification, waiver or change could reasonably be expected to have a Material Adverse Effect or would be materially adverse to the Lenders.
Seller May Own Notes or the Certificate Subject to the provisions of the Sale and Servicing Agreement, Seller and any Affiliate of Seller may in their individual or any other capacity become the owner or pledgee of Notes or the Certificate with the same rights as they would have if they were not Seller or an Affiliate thereof.
Seller May Own Certificates or Notes The Seller and any Affiliate of the Seller may in its individual or any other capacity become the owner or pledgee of Certificates or Notes with the same rights as it would have if it were not the Seller or an Affiliate thereof, except as otherwise provided in the Basic Documents. Certificates or Notes so owned by or pledged to the Seller or such controlling or commonly controlled Person shall have an equal and proportionate benefit under the provisions of this Agreement, without preference, priority or distinction as among all of the Certificates or the Notes, as the case may be, except as otherwise expressly provided in the Basic Documents.
Investments, Loans, Advances, Guarantees and Acquisitions The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Borrower in any Guarantor and by any Guarantor in any other Guarantor; provided that the Equity Interests evidencing such investments have been pledged in favour of the Administrative Agent and the certificates evidencing such Equity Interests have been delivered to the Administrative Agent together with stock transfer powers (executed in blank) with respect to same;
(d) direct and indirect investments existing on the date hereof by the Borrower in any Subsidiary which is not a Guarantor; provided that such investments are identified on Schedule 3.17;
(e) investments in existence on the date of this Agreement and described in Schedule 6.04;
(f) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any Subsidiary, provided that (A) in the case of loans or advances from Loan Parties to Subsidiaries that are not Loan Parties, such loans and advances are made in the ordinary course of business and consistent with past practices and (B) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding Guarantees permitted under the proviso to Section 6.04(g)) shall not exceed $40,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(g) Guarantees constituting Indebtedness permitted by Section 6.01, provided that (A) in the case of Guarantees by Loan Parties of Indebtedness of Subsidiaries that are not Loan Parties, such Guarantees are entered into in the ordinary course of business and consistent with past practices, and (B) the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is guaranteed by any Loan Party shall (together with outstanding intercompany loans permitted under the proviso to Section 6.04(f)) shall not exceed $40,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments constituting minority equity interests in Persons other than Subsidiaries of the Borrower not exceeding $25,000,000; and
(j) other investments not exceeding $5,000,000 at any time.
Trustee Not Liable for Certificates or Mortgage Loans The recitals contained herein and in the Certificates shall be taken as the statements of the Depositor or the Transferor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or related document. The Trustee shall not be accountable for the use or application by the Depositor or the Master Servicer of any funds paid to the Depositor or the Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the Collection Account or the Distribution Account by the Depositor, the Master Servicer or the Trust Administrator.
Initial Loans This Agreement shall not become effective nor shall the Lenders be required to make the initial Loans unless (i) since December 31, 2015, no event, development or circumstance shall have occurred that has had, or could reasonably be expected to have, a material adverse effect on the business, assets, operations or financial condition of Harley and its subsidiaries taken as a whole, (ii) the Global Administrative Agent shall have received evidence of an effective amendment to the Credit Agreement dated April 7, 2014 (the “Existing 2014 Credit Agreement”) among inter xxxx Xxxxxx, the guarantors party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as global administrative agent, making conforming changes to the Existing 2014 Credit Agreement to correspond with the terms of this Agreement other than in respect of pricing, maturity and borrowers and (iii) the Borrowers shall have (a) paid all fees required to be paid, and all expenses required to be paid for which invoices have been presented reasonably in advance of the Closing Date, in connection with the execution of this Agreement, (b) furnished to the Global Administrative Agent such documents as the Global Administrative Agent or any Lender or its counsel may have reasonably requested, including, without limitation, all of the documents reflected on the List of Closing Documents attached as Exhibit D to this Agreement, (c) obtained all governmental and third party approvals necessary in connection with the financing contemplated hereby and the continuing operations of Harley and its Subsidiaries (including the Borrowers) and such approvals remain in full force and effect, (d) delivered to the Lenders (1) audited consolidated financial statements of Harley (on a Consolidated basis) and (2) audited Consolidated financial statements of HDFS and its Subsidiaries (on a Consolidated basis), in the case of each of the foregoing clauses (1) and (2), for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available and (e) delivered evidence reasonably satisfactory to the Global Administrative Agent of the payment of all principal, interest, fees and premiums, if any, on all Indebtedness under the Existing Credit Agreement, and the termination of the applicable agreements relating thereto, all taking effect concurrently with the effectiveness of this Agreement; provided that any Lender hereunder which is also a “Lender” under the Existing Credit Agreement hereby waives (A) any requirement of five (5) Business Days notice by the “Borrowers” under the Existing Credit Agreement prior to the reduction of the commitments thereunder and the termination thereof and (B) the payment of any amounts under Section 3.4 of the Existing Credit Agreement in connection with the termination thereof.
SALE/PURCHASE OF INITIAL LOANS (A) Consummation of Sale and Purchase The sale and purchase of Eligible Loans pursuant to the Initial Purchase Agreement to be dated as of the Closing Date shall be consummated upon (i) Funding’s receipt from VL Funding and the VL Funding Eligible Lender Trustee for the benefit of VL Funding of the Initial Xxxx of Sale and (ii) the payment by Funding to VL Funding of the Initial Payment. Upon consummation, such sale and purchase shall be effective as of the date of the Initial Xxxx of Sale. VL Funding and Funding shall use their best efforts to perform promptly their respective obligations pursuant to the Initial Purchase Agreement with respect to each Initial Loan.
(B) Settlement of the Initial Payment On the date of the Initial Xxxx of Sale, Funding shall pay to VL Funding the Initial Payment by wire transfer of immediately available funds to the account specified by VL Funding.
(C) Interest Subsidy and Special Allowance Payments and Rebate Fees VL Funding shall be entitled to all Interest Subsidy Payments and Special Allowance Payments on each Initial Loan accruing up to but not including the Initial Cutoff Date and shall be responsible for the payment of any rebate fees applicable to the Initial Loans accruing up to but not including the Initial Cutoff Date. The Interim Eligible Lender Trustee on behalf of Funding shall be entitled to all Special Allowance Payments and Interest Subsidy Payments on the Initial Loans accruing from the Initial Cutoff Date, and shall be responsible for the payment of any rebate fees applicable to the Initial Loans accruing from the Initial Cutoff Date.
Pledges or Loans of Securities (1) Upon receipt of Instructions from a Fund, the Custodian will release or cause to be released Securities held in custody to the pledgees designated in such Instructions by way of pledge or hypothecation to secure loans incurred by such Fund with various lenders including but not limited to UMB Bank, n.a.; provided, however, that the Securities shall be released only upon payment to the Custodian of the monies borrowed, except that in cases where additional collateral is required to secure existing borrowings, further Securities may be released or delivered, or caused to be released or delivered for that purpose upon receipt of Instructions. Upon receipt of Instructions, the Custodian will pay, but only from funds available for such purpose, any such loan upon re-delivery to it of the Securities pledged or hypothecated therefor and upon surrender of the note or notes evidencing such loan. In lieu of delivering collateral to a pledgee, the Custodian, on the receipt of Instructions, shall transfer the pledged Securities to a segregated account for the benefit of the pledgee.
(2) Upon receipt of Instructions, the Custodian will release securities to a securities lending agent appointed by the Fund and designated in such Instructions. The Custodian shall act upon Instructions from the Fund and/or such agent in order to effect securities lending transactions on behalf of the Fund. For its services in facilitating a Fund’s securities lending activities through such agent, the Custodian may receive from the agent a portion of the agent’s securities lending revenue or a fee directly from the Fund. The Custodian shall have no responsibility or liability for any losses arising in connection with the agent’s actions or omissions, including but not limited to the delivery of Securities prior to the receipt of collateral, in the absence of negligence or willful misconduct on the part of the Custodian.
