Transfers of Notes. Each of Funding Agents and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI (or any successor forms) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 3 contracts

Samples: Omnibus Amendment (BBX Capital Corp), Omnibus Amendment (Bluegreen Vacations Corp), Note Funding Agreement (BBX Capital Corp)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. . (b) Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a ~~Note or~~ Note, an interest in a ~~Note~~ Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the ~~Indenture,~~ Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment ~~Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser~~ Letter. (~~if the Conduit Purchaser is Autobahn Funding Company LLC~~d) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the ~~related Funding~~ Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph~~. Each Funding~~ . (e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by ~~such Funding~~ the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to ~~a Funding~~ the Agent hereunder may in all cases be distributed by ~~such Funding~~ the Agent to the ~~Purchasers in its Purchaser Group~~Purchasers) except that ~~such Funding~~ the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through ~~such Funding~~ the Agent or such Purchaser, (iii) to the extent such information was available to ~~such Funding~~ the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to ~~such Funding~~ the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent ~~such Funding~~ the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi~~) such Funding~~ ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. . (f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents~~ Agent shall have consented thereto (which consent shall not be ~~in each Funding Agent’s sole discretion~~unreasonably withheld) and the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the ~~related Funding~~ Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~Agent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof ~~(but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the ~~Funding Agents~~ Agent notice of the consummation of any sale by it of a Participation, and the ~~related Funding~~ Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. . (g) Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion)~~ Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents~~ Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the ~~Funding Agents~~ Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of ~~a Funding~~ the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding~~ Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the ~~related Funding~~ Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (i) Any Purchaser shall have the option to change its Investing Office. . (j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 2 contracts

Samples: Note Funding Agreement (Bluegreen Corp), Note Funding Agreement (Bluegreen Corp)

Transfers of Notes. Each of Funding Agents and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (~~or any interest therein~~a) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI (or any successor forms) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section ~~8.1~~9.01 and any applicable provisions of the Indenture. Any partial Transfer of ~~a Note or~~ 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 of, at least $~~1,000,000~~ 5,000,000 in the aggregate, which may be composed of (A) a portion of the outstanding principal ~~under~~ balance of the ~~Notes~~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 ~~8.1~~ 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 ~~beneficial~~ interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation ~~(each as defined below)~~ to any Person (each, a “Transferee”) unless ~~such transfer complies with~~ the ~~transfer restrictions specified in the Indenture,~~ Transferee is a Permitted Transferee and prior to the ~~transfer~~ Transfer, the Transferee shall have executed and delivered to the ~~Issuer an Investment Letter~~ Agent and the ~~Funding Agents have provided their prior written consent to such Transfer. Notwithstanding~~ Issuer a Transferee Certificate in substantially the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement form of Exhibit B to the ~~Cost~~ Indenture. (b) Each of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and ~~the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer~~ 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 ~~financial information~~ Confidential Information in the Purchaser’s possession concerning this Agreement or the ~~Seller~~Transaction Documents or concerning Option One, the ~~Servicer~~Depositor, the ~~Depositor and~~ Issuer, the ~~Issuer~~ Receivables or such party which has been delivered to ~~the related Funding Agent or~~ 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 ~~Seller, the Issuer, the Depositor~~ Issuer or ~~the Servicer~~ Option One in connection with such Purchaser’s credit evaluation of the ~~Seller~~Receivables, the ~~Issuer, the Depositor~~ Issuer or ~~the Servicer~~ Option One prior to becoming a party to, or purchasing an interest in this Agreement or the Notes; provided, ~~provided~~ that ~~each~~ prior to any such ~~Transferee~~disclosure, such Transferee or Support Party or prospective Transferee ~~agrees~~ or Support Party shall have agreed in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents all Confidential Information provided to ~~a Funding Agent hereunder may~~ it in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) accordance with the ~~consent~~ provisions of ~~the Servicer,~~ this Agreement. (vc) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable ~~law (which includes applicable securities laws)~~law, at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the ~~Indenture~~ Transaction Documents (each, a “Participation”), to any ~~Person~~ Permitted Transferee (~~each~~each such Permitted Transferee, a “Participant”); provided, however, that no Participation shall be granted to any Person ~~unless and until the Funding Agents shall have consented thereto~~ unless; (~~which consent shall be in each Funding Agent’s sole discretion~~i) ~~and~~ the conditions to Transfer specified in this ~~Agreement, including in subsections 8.1(b) and (c) hereof,~~ Agreement shall have been ~~satisfied~~ satisfied, and ~~that~~ (ii) such Participation consists of a pro rata percentage interest in all ~~principal~~ payments made with respect to such Purchaser’s beneficial interest (if any) in the ~~Notes and a specified interest rate on the principal balance of such Participation~~Notes. In connection with any such Participation, ~~the related Funding Agent~~ each Purchaser shall maintain a register of each Participant and the amount of each related Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (iiB) none of the Indenture Trustee, the ~~Issuer, the Depositor, the Seller nor the Servicer~~ Issuer or 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~~ Transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~applicable Purchaser. Each Participant shall be entitled to receive additional amounts and indemnification pursuant to ~~Section 2.4~~ Sections 8.01, 8.03 and 8.04 hereof ~~(but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such ~~Section~~ Sections applied to its Participation; provided, 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 ~~Funding Agents~~ 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) to the ~~related Funding Agent (upon receipt of notice from~~ extent such Participant has not otherwise directly provided such forms to the ~~related Purchaser) shall promptly notify the Issuer, the Servicer~~ Issuer and the Indenture Trustee~~. Unless separately agreed~~ , (A) prior to ~~between~~ the ~~related Purchaser~~ date on which the first interest payment is due to such Participant, such Participant will provide to the Issuer 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 ~~the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except~~ Section 8.04(c) with respect to ~~those matters set forth in clauses~~ such Participant as though it were a Purchaser. (id) ~~and (ii) of the proviso to Section 9.1 hereof.~~ Each Purchaser ~~may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and~~ may in accordance with applicable ~~law (which includes applicable securities laws)~~law, sell or assign (each, an “Assignment”), ) to any ~~Person~~ Permitted Transferee (each, an “Assignee”) all or any part of its Commitment (if any) or its interest in the Notes and its rights and obligations under this Agreement and the ~~Indenture~~ Transaction Documents pursuant to an agreement ~~substantially in the form attached hereto as Exhibit C hereto~~ (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents and the Servicer for their acceptance and consent~~Agent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this ~~Agreement, including in subsections 8.1(b) and (c) hereof,~~ Agreement shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding Percentages~~ Commitment Interests arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. . (e) Upon instruction to register a transfer of a Purchaser’s ~~beneficial~~ interest in the Notes (or portion thereof) and surrender for registration of transfer of such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of ~~an Investment Letter~~a Transferee Certification, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this ~~Agreement~~Agreement or the Indenture, such ~~beneficial~~ interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee ~~and the related Funding Agent~~ and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture~~. Such Transfers of Notes~~ . (~~and interests therein~~f) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law~~. Any Purchaser shall have the option to change its Investing Office.~~ . (g) Each ~~Affected~~ Support Party shall be entitled to receive additional payments and indemnification pursuant to ~~Section 2.4~~ Sections 8.01, 8.03 and 8.04 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes; provided, that such Support Party shall not be entitled to additional payments pursuant to (i) Section 8.03 by reason of Regulatory Changes which occurred prior to the date it became a Support Party or (ii) Section 8.04 attributable to its failure to satisfy the requirements of Section 8.04(c) as if it were a Purchaser; provided, further, that unless such Support Party is a Permitted Transferee or has been consented to by the Issuer, such Support Party shall be entitled to receive additional amounts pursuant to Sections 8.03 or 8.04 only to the 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 factual information set forth therein absent manifest error.

Appears in 1 contract

Samples: Note Purchase Agreement (H&r Block Inc)

Transfers of Notes. (a) Each of Funding Agents and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. . (b) Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI (or any successor forms) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. . (d) Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. . (e) Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. . (f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. . (g) Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (i) Any Purchaser shall have the option to change its Investing Office. . (j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 1 contract

Samples: Note Funding Agreement (BBX Capital Corp)

Transfers of Notes. ~~Each~~ (a) The Note Purchaser hereby makes each of ~~Funding Agents~~ the representations and warranties set forth in the ~~Purchasers~~ form of Investment Letter attached hereto as Exhibit A to the Issuer on the Closing Date. The Note Purchaser agrees that ~~any~~ the beneficial interest in the Notes purchased ~~or otherwise acquired~~ by it will be acquired for investment only and not with a view to any public distribution thereof, and that it the Note Purchaser will not offer to sell or otherwise dispose of ~~any Note~~ the Notes acquired by it (or any interest therein) in violation of any of the ~~registration~~ requirements of the Securities Act or ~~the registration or qualification requirements of~~ any applicable state or other securities laws. ~~Each of the Funding Agents and the Purchasers~~ The Note Purchaser acknowledges that it has no right to require AmeriCredit, AFS SenSub or the Issuer to register, under the Securities Act of 1933, as amended, or any other securities law, the Notes (or ~~any~~ the beneficial interest therein) acquired by it pursuant to this ~~Agreement, any Joinder Supplement~~ Agreement or any Transfer Supplement. ~~Each of the Funding Agents and the Purchasers~~ The Note Purchaser hereby confirms and agrees that in connection with any transfer ~~or syndication~~ by it of an interest in the Notes, it the Note Purchaser has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising~~. Each~~ . (b) The Note Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein hereby certifies and any ~~Assignee~~ Transferee thereof ~~or Participant therein~~ shall certify to the Issuer, the Seller, the ~~Servicer, the Depositor, the Indenture Trustee~~ Servicer and the ~~Funding Agents~~ Trustee that it is either (~~A)(i~~i) a citizen or resident of the United States, (ii) a corporation or ~~partnership (or any~~ other entity ~~treated as a corporation or a partnership for federal income tax purposes)~~ organized in or under the laws of the United States or any political subdivision thereof ~~which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income~~ or (iii) a person not described in (i) or (ii) ~~whose income from~~ who is entitled to receive payments under this Agreement and with respect to the Notes ~~is and will be effectively connected with the conduct~~ without deduction or withholding of ~~a trade or business within the~~ any United States ~~(within the meaning of the Code)~~ federal income taxes and whose ownership of any interest in ~~a Note~~ the Notes will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI Person. (~~or any successor forms~~c) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of ~~a Note or any interest therein~~ the Notes may be made ~~only~~ in whole or in part, and in accordance with this Section 8.1~~. Any~~ ; provided, however, that any initial Transfer ~~of a Note or an interest~~ made in ~~a Note~~ part shall be limited to three Transfers so that there are no more than three Noteholders, and any subsequent Transfers shall only be made in ~~respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest~~ whole, but not in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Notepart. No Note or any interest therein may be Transferred ~~by Assignment or Participation (each as defined below)~~ to any Person (each, a “Transferee”) unless (i) the transferring Note Purchaser has provided at least fifteen (15) Business Days prior written notice to the Issuer, the Seller and the Servicer of the proposed Transfer, (ii) the prospective Transferee has been consented to by AmeriCredit, which consent shall not be unreasonably withheld, delayed or conditioned (provided, that if the prospective Transferee is an Affiliate of the Note Purchaser or an Event of Default has occurred and is continuing, no such ~~transfer complies with the transfer restrictions specified in the Indenture~~consent shall be required), (iii) prior to the ~~transfer~~ Transfer, the Transferee shall have executed and delivered to the Issuer and the Note Registrar an Investment Letter substantially in the form of Exhibit A attached hereto, and ~~the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser~~ (~~if the Conduit Purchaser is Autobahn Funding Company LLC~~iv) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the ~~Depositor~~Seller, the ~~Seller~~ Servicer and the Trustee shall have received a copy of the duly executed Transfer Supplement. (d) Each of AFS SenSub, the Seller, the Issuer, AmeriCredit and the Servicer authorizes ~~each~~ the Note Purchaser to disclose to any Transferee and any prospective Transferee any and all ~~financial~~ confidential information in the Note Purchaser’s possession concerning this Agreement or the ~~Seller,~~ Basic Documents or concerning the ~~Servicer, the Depositor and the Issuer~~ Collateral or such information which has been delivered to the ~~related Funding Agent or such~~ Note Purchaser pursuant to this Agreement or the ~~Transaction~~ Basic Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Note Purchaser by or on behalf of AFS SenSub, the Seller, the Issuer, ~~the Depositor or~~ AmeriCredit and the Servicer in connection with ~~such~~ the Note Purchaser’s ~~credit~~ evaluation of the Receivables, AFS SenSub, the Seller, the Issuer, ~~the Depositor~~ AmeriCredit or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes; provided, ~~provided~~ that ~~each~~ prior to any such ~~Transferee~~disclosure, such Transferee or prospective Transferee ~~agrees~~ shall have agreed in writing to ~~maintain~~ comply with the confidentiality provisions of Section 6.2, and a copy of such ~~information pursuant~~ written agreement as to compliance has been furnished to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence Servicer. (~~it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group~~e) ~~except that such Funding Agent or such~~ The Note Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable ~~law (which includes applicable securities laws)~~law, ~~at any time grant participations in all~~ sell, transfer or ~~part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”),~~ assign to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists Transferee all of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the ~~Indenture~~ Basic Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C B hereto (a “Transfer Supplement”), executed by such ~~Assignee~~ Transferee and the ~~Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consent~~Note Purchaser; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (xi) the ~~Assignee~~ Transferee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Note Purchaser hereunder as set forth therein and (yii) the ~~transferor~~ transferring Note Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any, and other~~ obligations under this Agreement; provided, however, that after giving effect to each such ~~Assignment~~Transfer, the obligations released by any such Note Purchaser shall have been assumed by ~~an Assignee~~ a Transferee or ~~Assignees~~Transferees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such ~~Assignee and the resulting adjustment of Funding Percentages arising from the Assignment~~Transferee. ~~Upon its receipt and acceptance of a duly executed Transfer Supplement~~The transferring Note Purchaser shall, ~~the related Funding Agent shall~~ on the effective date determined pursuant ~~thereto give notice~~ to the Transfer Supplement, provide a copy of such ~~acceptance~~ duly executed Transfer Supplement to the Issuer, the Seller, the Servicer and the ~~Indenture~~ Trustee. . (f) Upon instruction to register a transfer of a the Note Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer ~~such~~ of the Note Purchaser’s ~~Note(s) (if applicable)~~ Notes and delivery to the Issuer ~~and the Indenture Trustee~~ of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the ~~Indenture~~ Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the ~~Indenture~~ Trustee ~~and the related Funding Agent~~ and, if requested by the ~~Assignee~~Transferee, new Notes shall be issued to the ~~Assignee~~ Transferee and, if applicable, the ~~transferor~~ transferring Note Purchaser in amounts reflecting such Transfer as provided in ~~the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of~~ the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 1 contract

Samples: Note Purchase Agreement (General Motors Financial Company, Inc.)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. . (b) Each Purchaser which executes a Joinder ~~Supplement~~ Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder ~~Supplement~~ Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a ~~Note or~~ Note, an interest in a ~~Note~~ Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the ~~Indenture,~~ Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment ~~Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser~~ Letter. (~~if the Conduit Purchaser is Autobahn Funding Company LLC~~d) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the ~~related Funding~~ Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph~~. Each Funding~~ . (e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by ~~such Funding~~ the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to ~~a Funding~~ the Agent hereunder may in all cases be distributed by ~~such Funding~~ the Agent to the ~~Purchasers in its Purchaser Group~~Purchasers) except that ~~such Funding~~ the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through ~~such Funding~~ the Agent or such Purchaser, (iii) to the extent such information was available to ~~such Funding~~ the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to ~~such Funding~~ the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent ~~such Funding~~ the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi~~) such Funding~~ ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. ; or (vii) in the case of the Structured Purchaser, to any rating agency rating or proposing to rate any commercial paper issued by the Structured Purchaser or a Liquidity Institution. (f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents~~ Agent shall have consented thereto (which consent shall not be ~~in each Funding Agent’s sole discretion~~unreasonably withheld) and the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all ~~principal~~ payments made with respect to such Purchaser’s 's beneficial interest (if any) in the ~~Notes and a specified interest rate on the principal balance of such Participation~~Notes. In connection with any such Participation, the ~~related Funding~~ Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~Agent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 ~~hereof (but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the ~~Funding Agents~~ Agent notice of the consummation of any sale by it of a Participation, and the ~~related Funding~~ Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. ~~Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no~~ No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section ~~9.1 hereof.~~ 9.1. (g) Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion)~~ Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents~~ Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied; ~~provided,~~ and provided further, however, that neither the consent of the Servicer nor the ~~Funding Agents~~ Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser ~~in its Purchaser Group; and provided~~(or, ~~further, however, that neither the consent of the Servicer nor the Funding Agents shall be required~~ in the case of ~~an assignment by~~ the Structured Purchaser, to any ~~existing Purchaser to another existing Purchaser~~Eligible Lender), or in the case of any assignment to any Affiliates of ~~a Funding~~ the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding~~ Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture ~~Trustee~~Trustee and the Servicer will provide notice thereof to the Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the ~~related Funding~~ Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (i) Any Purchaser shall have the option to change its Investing Office. . (j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes. (k) Notwithstanding anything herein to the contrary, the Structured Purchaser shall be permitted to assign or transfer all of its Notes or interests therein and its rights and obligations under this Agreement to a Liquidity Institution (including a Requested Investment (as defined in the Liquidity Agreement)) in accordance with the Liquidity Agreement without the consent of any Person and the requirements (including the documentary requirements) of paragraph (b), (c), the proviso to paragraph (d) and paragraph (g) shall not apply to any such transfer. Any Liquidity Institution shall automatically become a Purchaser hereunder to the extent of such interest and the Issuer and the Agent shall take all steps to reflect and register in the Purchaser Register such transfer to such Liquidity Institution.

Appears in 1 contract

Samples: Note Funding Agreement (Bluegreen Corp)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the ~~Purchasers~~ Owners agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Owners acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Owners hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder ~~Supplement~~ Agreement agrees that it ~~will comply with all transfer restrictions specified in the Indenture and~~ will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder ~~Supplement~~ Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. . (b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a ~~Note or~~ Note, an interest in a ~~Note~~ Note, a Commitment or any Noncommitted Purchaser Percentage shall be in respect of (i) in the case of a Committed Purchaser, at least $~~1,000,000~~ 10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, its Commitment hereunder, or (ii) in the case of a Noncommitted Purchaser, at least $10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the ~~Notes~~Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, the product of the Noncommitted Purchaser Percentage subject to such Transfer times the aggregate Commitments hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation ~~(each as defined below)~~ to any Person (each, a “"Transferee”") unless ~~such transfer complies with the transfer restrictions specified in the Indenture,~~ prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerLetter. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the ~~related Funding~~ Agent or such Purchaser pursuant to the ~~Transaction~~ Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee and Support Party agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. ~~Each Funding~~ The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by ~~such Funding~~ the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other ~~Transaction~~ Related Documents shall be held in confidence (it being understood that documents provided to ~~a Funding~~ the Agent hereunder may in all cases be distributed by ~~such Funding~~ the Agent to the ~~Purchasers in its Purchaser Group~~Purchasers) except that ~~such Funding~~ the Agent or such Purchaser may disclose such information (i) to its officers, directors~~, members~~, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through ~~such Funding~~ the Agent or such Purchaser, (iii) to the extent such information was available to ~~such Funding~~ the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to ~~such Funding~~ the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent ~~such Funding~~ the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such ~~information~~information or (vii) in the case of any Purchaser that is a Structured Purchaser, to rating agencies, placement agents and providers of liquidity and credit support who agree to hold such information in confidence; provided, that, in the case of clause (vi~~) such Funding~~ ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the ~~Issuer~~ Servicer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. . (d) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents~~ Agent shall have consented thereto ~~(which consent shall be in each Funding Agent’s sole discretion)~~ and the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all ~~principal~~ payments made with respect to such Purchaser’s 's beneficial interest (if any) in the ~~Notes and a specified interest rate on the principal balance of such Participation~~Notes. In connection with any such Participation, the ~~related Funding~~ Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to ~~transfer~~ Transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~Agent. Each Participant shall be entitled to receive indemnification pursuant to ~~Section~~ Sections 2.4 ~~hereof (but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such ~~Section~~ Sections applied to its Participation. Each Purchaser shall give the ~~Funding Agents~~ Agent notice of the consummation of any sale by it of a ~~Participation,~~ Participation and the ~~related Funding~~ Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. ~~Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no~~ No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section ~~9.1 hereof.~~ 9.1. (e) Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion)~~ Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents~~ Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied; ~~provided,~~ and provided further, however, that ~~neither~~ the consent of the Servicer ~~nor the Funding Agents~~ shall not be required (i) in the case of an assignment by a Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any one or more of its Support Parties, (ii) in the case of an assignment by a Liquidity Provider to another Liquidity Provider pursuant to the terms of the related Support Agreement, (iii) in the case of an assignment by any ~~existing~~ Purchaser to another ~~existing Purchaser~~ Purchaser, (iv) in the case of any assignment to Credit Suisse First Boston International Limited or any of its ~~Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required~~ Affiliates or (v) in the case of an assignment by the initial Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any ~~existing~~ Structured Purchaser ~~to another existing~~ (A) which is administered by the same Person as such Noncommitted Purchaser, ~~or in~~ (B) which becomes a party to the ~~case~~ Agreement and (C) which expects to have a cost of ~~any assignment~~ funds reasonably similar to ~~any Affiliates~~ the cost of ~~a Funding Agent~~funds of such Noncommitted Purchaser. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding~~ Percentage Interests, Committed Purchaser Percentages, Noncommitted Purchaser Percentages, Liquidity Percentages or Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture ~~Trustee~~Trustee and the Servicer will provide notice thereof to each Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the ~~related Funding~~ Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (g) Any Purchaser shall have the option to change its Investing Office. . (h) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 1 contract

Samples: Note Purchase Agreement (Bluegreen Corp)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the ~~Purchasers~~ Owners agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Owners acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Owners hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder ~~Supplement~~ Agreement agrees that it ~~will comply with all transfer restrictions specified in the Indenture and~~ will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder ~~Supplement~~ Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. . (b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a ~~Note or~~ Note, an interest in a ~~Note~~ Note, a Commitment or any Noncommitted Purchaser Percentage shall be in respect of (i) in the case of a Committed Purchaser, at least $~~1,000,000~~ 5,000,000 in the aggregate, which may be composed of (A) outstanding principal under the Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, its Commitment hereunder, or (ii) in the case of a Noncommitted Purchaser, at least $5,000,000 in the aggregate, which may be composed of (A) outstanding principal under the ~~Notes~~Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, the product of the Noncommitted Purchaser Percentage subject to such Transfer times the aggregate Commitments hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation ~~(each as defined below)~~ to any Person (each, a “"Transferee”") unless ~~such transfer complies with the transfer restrictions specified in the Indenture,~~ prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerLetter. Each of the Issuer, the Depositor, the Transferor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the ~~Depositor~~ Depositor, the Transferor and the Issuer which has been delivered to the ~~related Funding~~ Agent or such Purchaser pursuant to the ~~Transaction~~ Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the ~~Depositor~~ Depositor, the Transferor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the ~~Depositor~~ Depositor, the Transferor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee and Support Party agrees ~~in writing~~ to maintain the confidentiality of such information pursuant to the following paragraph. ~~Each Funding~~ The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by ~~such Funding~~ the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other ~~Transaction~~ Related Documents shall be held in confidence (it being understood that documents provided to ~~a Funding~~ the Agent hereunder may in all cases be distributed by ~~such Funding~~ the Agent to the ~~Purchasers in its Purchaser Group~~Purchasers) except that ~~such Funding~~ the Agent or such Purchaser may disclose such information (i) to its officers, directors~~, members~~, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through ~~such Funding~~ the Agent or such Purchaser, (iii) to the extent such information was available to ~~such Funding~~ the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to ~~such Funding~~ the Agent or such Purchaser ~~in connection with this transaction~~hereunder, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent ~~such Funding~~ the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such ~~information~~information or (vii) in the case of any Purchaser that is a Structured Purchaser, to rating agencies, placement agents and providers of liquidity and credit support who agree to hold such information in confidence; provided, that, in the case of clause (vi~~) such Funding~~ ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the ~~Issuer~~ Servicer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. . (d) Each Purchaser may, in accordance with applicable ~~law (which includes applicable securities laws)~~law, at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents~~ Agent shall have consented thereto ~~(which consent shall be in each Funding Agent’s sole discretion)~~ and the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c) hereof~~this subsection 8.1(d), shall have been satisfied and that such Participation consists of a pro rata percentage interest in all ~~principal~~ payments made with respect to such Purchaser’s 's beneficial interest (if any) in the ~~Notes and a specified interest rate on the principal balance of such Participation~~Notes. In connection with any such Participation, the ~~related Funding~~ Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) ~~none of~~ neither the Indenture Trustee, the Issuer, the Depositor, the Transferor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to ~~transfer~~ Transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its ParticipationAgent. Each Purchaser shall give the ~~Funding Agents~~ Agent notice of the consummation of any sale by it of a ~~Participation,~~ Participation and the ~~related Funding~~ Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Seller, the Depositor, the Servicer and the Indenture Trustee. ~~Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no~~ No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section ~~9.1 hereof.~~ 9.1. (e) Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld)~~ Agent and in accordance with applicable ~~law (which includes applicable securities laws)~~law, sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents and the Servicer~~ Agent for ~~their~~ its acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c) hereof~~this subsection 8.1(d), shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by as to any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding~~ Percentage Interests, Committed Purchaser Percentages, Noncommitted Purchaser Percentages, Liquidity Percentages or Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Seller, the Depositor, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the ~~Issuer~~ Issuer, the Seller, the Servicer, the Depositor and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the ~~Indenture Trustee and the related Funding~~ Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section ~~6.3~~ 2.10 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the ~~Note Register.~~ Agent's records. (f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (g) Any Purchaser shall have the option to change its Investing Office~~. Each Affected Party~~ , provided that no increased costs or other additional amounts shall be ~~entitled to receive indemnification pursuant to Section 2.4 hereof~~ payable as ~~though it were~~ a ~~Purchaser and~~ result of any such ~~Section applied to its interest in or commitment to acquire an interest in the Notes~~change.

Appears in 1 contract

Samples: Class a Note Purchase Agreement (Oakwood Homes Corp)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. . (b) Each Purchaser which executes a Joinder ~~Supplement~~ Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder ~~Supplement~~ Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a ~~Note or~~ Note, an interest in a ~~Note~~ Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “"Transferee”") unless such transfer complies with the transfer restrictions specified in the ~~Indenture,~~ Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment ~~Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser~~ Letter. (~~if the Conduit Purchaser is Autobahn Funding Company LLC~~d) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the ~~related Funding~~ Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph~~. Each Funding~~ . (e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by ~~such Funding~~ the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to ~~a Funding~~ the Agent hereunder may in all cases be distributed by ~~such Funding~~ the Agent to the ~~Purchasers in its Purchaser Group~~Purchasers) except that ~~such Funding~~ the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through ~~such Funding~~ the Agent or such Purchaser, (iii) to the extent such information was available to ~~such Funding~~ the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to ~~such Funding~~ the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent ~~such Funding~~ the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi~~) such Funding~~ ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. ; or (vii) in the case of the Structured Purchaser, to any rating agency rating or proposing to rate any commercial paper issued by the Structured Purchaser or a Liquidity Institution. (f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents~~ Agent shall have consented thereto (which consent shall not be ~~in each Funding Agent’s sole discretion~~unreasonably withheld) and the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s 's beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the ~~related Funding~~ Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~Agent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof ~~(but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the ~~Funding Agents~~ Agent notice of the consummation of any sale by it of a Participation, and the ~~related Funding~~ Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. . (g) Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion)~~ Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents~~ Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied; and provided, further, however, that neither the consent of the Servicer nor the ~~Funding Agents~~ Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser ~~in its Purchaser Group; and provided~~(or, ~~further, however, that neither the consent of the Servicer nor the Funding Agents shall be required~~ in the case of ~~an assignment by~~ the Structured Purchaser, to any ~~existing Purchaser to another existing Purchaser~~Eligible Lender), or in the case of any assignment to any Affiliates of ~~a Funding~~ the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding~~ Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture ~~Trustee~~Trustee and the Servicer will provide notice thereof to the Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the ~~related Funding~~ Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (i) Any Purchaser shall have the option to change its Investing Office. . (j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes. (k) Notwithstanding anything herein to the contrary, the Structured Purchaser shall be permitted to assign or transfer all of its Notes or interests therein and its rights and obligations under this Agreement to a Liquidity Institution (including a Requested Investment (as defined in the Liquidity Agreement)) in accordance with the Liquidity Agreement without the consent of any Person and the requirements (including the documentary requirements) of paragraph (b), (c), the proviso to paragraph (d) and paragraph (g) shall not apply to any such transfer. Any Liquidity Institution shall automatically become a Purchaser hereunder to the extent of such interest and the Issuer and the Agent shall take all steps to reflect and register in the Purchaser Register such transfer to such Liquidity Institution.

Appears in 1 contract

Samples: Note Funding Agreement (Bluegreen Corp)

Transfers of Notes. Each of Funding Agents and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the Funding Agents and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Funding Agents and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who will, prior to the applicable Transfer of a Note, furnish to the Issuer, the Funding Agents, the Seller, the Servicer and the Indenture Trustee, and to the Person making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI (or any successor forms) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the ~~Funding Agents have~~ Servicer (subject to the same exceptions to consent set forth in Section 8.1(g) hereof) provided ~~their~~ its prior written consent (which shall not be unreasonably withheld) to such Transfer. Notwithstanding the foregoing, ~~the Conduit Purchaser (if the Conduit Purchaser is~~ Autobahn Funding Company LLC) , as Conduit Purchaser, may, in its sole ~~discretion~~ discretion, at any time, assign its rights, obligations (if any) and interests under this Agreement to the ~~Cost of Funds~~ Bank Purchaser in its Purchaser Group so long as such ~~Cost of Funds~~ Bank Purchaser then assumes all obligations (if any) of ~~such Conduit Purchaser~~ Autobahn Funding Company LLC under this Agreement and, at or after such time, ~~the Conduit Purchaser~~ Autobahn Funding Company LLC may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the~~ conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant~~. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents~~. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion) and the~~ Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents for their acknowledgement and to the Servicer for ~~their acceptance and~~ its consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that ~~neither~~ the consent of the Servicer ~~nor the Funding Agents~~ shall not be required (i) in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; ~~and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required~~ (ii) in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding ~~Agent~~Agent or (iii) upon the occurrence and the continuance of an Event of Default. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 1 contract

Samples: Note Funding Agreement (Bluegreen Vacations Holding Corp)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the ~~Purchasers~~ Noteholders agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Noteholders acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Noteholders hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder ~~Supplement~~ Agreement agrees that it ~~will comply with all transfer restrictions specified in the Indenture and~~ will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder ~~Supplement~~ Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. . (b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a ~~Note or~~ Note, an interest in a ~~Note~~ Note, a Commitment or any Noncommitted Purchaser Percentage shall be in respect of (i) in the case of a Committed Purchaser, at least $~~1,000,000~~ 10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, its Commitment hereunder, or (ii) in the case of a Noncommitted Purchaser, at least $10,000,000 in the aggregate, which may be composed of (A) outstanding principal under the ~~Notes~~Notes or (B) to the extent in excess of the outstanding principal subject to such Transfer, the product of the Noncommitted Purchaser Percentage subject to such Transfer times the aggregate Commitments hereunder. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation ~~(each as defined below)~~ to any Person (each, a “"Transferee”") unless ~~such transfer complies with the transfer restrictions specified in the Indenture,~~ prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the ServicerLetter. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all financial information in the Purchaser’s 's possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the ~~related Funding~~ Agent or such Purchaser pursuant to the ~~Transaction~~ Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s 's credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee and Support Party agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. ~~Each Funding~~ The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by ~~such Funding~~ the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other ~~Transaction~~ Related Documents shall be held in confidence (it being understood that documents provided to ~~a Funding~~ the Agent hereunder may in all cases be distributed by ~~such Funding~~ the Agent to the ~~Purchasers in its Purchaser Group~~Purchasers) except that ~~such Funding~~ the Agent or such Purchaser may disclose such information (i) to its officers, directors~~, members~~, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through ~~such Funding~~ the Agent or such Purchaser, (iii) to the extent such information was available to ~~such Funding~~ the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to ~~such Funding~~ the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent ~~such Funding~~ the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such ~~information~~information or (vii) in the case of any Purchaser that is a Structured Purchaser, to rating agencies, placement agents and providers of liquidity and credit support who agree to hold such information in confidence; provided, that, in the case of clause (vi~~) such Funding~~ ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the ~~Issuer~~ Servicer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. . (d) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “"Participation”"), to any Person (each, a “"Participant”"); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents~~ Agent shall have consented thereto ~~(which consent shall be in each Funding Agent’s sole discretion)~~ and the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all ~~principal~~ payments made with respect to such Purchaser’s 's beneficial interest (if any) in the ~~Notes and a specified interest rate on the principal balance of such Participation~~Notes. In connection with any such Participation, the ~~related Funding~~ Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~Agent. Each Participant shall be entitled to receive indemnification pursuant to ~~Section~~ Sections 2.4 ~~hereof (but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such ~~Section~~ Sections applied to its Participation. Each Purchaser shall give the ~~Funding Agents~~ Agent notice of the consummation of any sale by it of a ~~Participation,~~ Participation and the ~~related Funding~~ Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. ~~Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no~~ No Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section ~~9.1 hereof.~~ 9.1. (e) Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion)~~ Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “"Assignment”"), to any Person (each, an “"Assignee”") all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “"Transfer Supplement”"), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents~~ Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied; ~~provided,~~ and provided further, however, that ~~neither~~ the consent of the Servicer ~~nor the Funding Agents~~ shall not be required (i) in the case of an assignment by a Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any one or more of its Support Parties, (ii) in the case of an assignment by a Liquidity Provider to another Liquidity Provider pursuant to the terms of the related Support Agreement, (iii) in the case of an assignment by any ~~existing~~ Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or (iv) in the case of any assignment to any Affiliates of the Agent, or (v) in the case of an assignment by the initial Noncommitted Purchaser of its interest in the Notes and its rights and obligations under this Agreement and the Indenture to any Structured Purchaser (A) which is administered by the same Person as such Noncommitted Purchaser, (B) which becomes a ~~Funding Agent~~party to the Agreement and (C) which expects to have a cost of funds reasonably similar to the cost of funds of such Noncommitted Purchaser. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding~~ Percentage Interests, Committed Purchaser Percentages, Noncommitted Purchaser Percentages, Liquidity Percentages or Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture ~~Trustee~~Trustee and the Servicer will provide notice thereof to each Rating Agency (if required). Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the ~~related Funding~~ Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (g) Any Purchaser shall have the option to change its Investing Office. . (h) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 1 contract

Samples: Note Purchase Agreement (Bluegreen Corp)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the ~~Purchasers~~ Owners agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Owners acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the ~~Purchasers~~ Owners hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder ~~Supplement~~ Agreement agrees that it ~~will comply with all transfer restrictions specified in the Indenture and~~ will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder ~~Supplement~~ Agreement a letter in the form attached hereto as Exhibit A (an “"Investment Letter”") with respect to the purchase by such Purchaser of an interest in the Notes. . (b) Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a Note or an interest in a Note shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the Indenture, prior to the transfer the Transferee shall have executed and delivered to the Issuer an Investment Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser (if the Conduit Purchaser is Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the related Funding Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph. Each Funding Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the Funding Agents shall have consented thereto (which consent shall be in each Funding Agent’s sole discretion) and the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the related Funding Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Funding Agents. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof (but shall not be entitled to indemnification under any other Section of this Agreement) as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the Funding Agents notice of the consummation of any sale by it of a Participation, and the related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. Each Purchaser may, with the consent of the Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the Funding Agents and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in subsections 8.1(b) and (c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its Commitment, if any, and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Funding Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the related Funding Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the related Funding Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. Any Purchaser shall have the option to change its Investing Office. Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.,

Appears in 1 contract

Samples: Class a Note Purchase Agreement (Oakwood Homes Corp)

Transfers of Notes. (a) Each ~~of Funding Agents~~ Purchaser shall execute and deliver to the ~~Purchasers~~ Issuer on the Closing Date an Investment Letter substantially in the form attached hereto as Exhibit A. Each Owner agrees that ~~any~~ the beneficial interest in the Notes purchased ~~or otherwise acquired~~ by it will be acquired for investment only and not with a view to any public distribution thereof, and that it such Owner will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the ~~registration~~ requirements of the Securities Act or ~~the registration or qualification requirements of~~ any applicable state or other securities laws. Each ~~of the Funding Agents and the Purchasers~~ Owner acknowledges that it has no right to require the AmeriCredit, AWC or the Issuer to register, under the Securities Act of 1933, as amended, or any other securities law, the Notes (or ~~any~~ the beneficial interest therein) acquired by it pursuant to this ~~Agreement, any Joinder Supplement~~ Agreement or any Transfer Supplement. Each ~~of the Funding Agents and the Purchasers~~ Owner hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it such Owner has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser which executes a Joinder Supplement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the Funding Agents on or before the effective date of its Joinder Supplement a letter in the form attached hereto as Exhibit A . (~~an “Investment Letter”~~b) ~~with respect to the purchase by such Purchaser of an interest in the Notes.~~ Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Receivables Seller, the Servicer, the ~~Depositor~~Indenture Trustee, the ~~Indenture Trustee~~ Administrative Agent and the ~~Funding Agents~~ Agent for its Purchaser Group that it is either (~~A)(i~~i) a citizen or resident of the United States, (ii) a corporation or ~~partnership (or any~~ other entity ~~treated as a corporation or a partnership for federal income tax purposes)~~ organized in or under the laws of the United States or any political subdivision thereof ~~which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income~~ or (iii) a person not described in (i) or (ii) ~~whose income from~~ who is entitled to receive payments under this Agreement and with respect to the Notes ~~is and will be effectively connected with the conduct~~ without deduction or withholding of ~~a trade or business within the~~ any United States ~~(within the meaning of the Code)~~ federal income taxes and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the Issuer, the ~~Funding Agents, the~~ Receivables Seller, the ~~Servicer and~~ Servicer, the Indenture Trustee, the Administrative Agent, the Agent for its Purchaser Group, and to the ~~Person~~ Owner making the Transfer ~~a properly executed U.S. Internal Revenue Service Form W-8ECI~~ the forms described in subsection 2.4(c). (~~or any successor forms~~c) (and agrees (to the extent legally able) to provide a new Form W-8ECI (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “"Transfer”") of a Note or any interest therein may be made only in accordance with this Section 8.1. Any partial Transfer (other than from a CP Conduit to a related Support Party) of ~~a Note or~~ an interest in a Note shall be in respect of of, at least $~~1,000,000 of~~ 5,000,000 in the ~~outstanding principal under the Notes~~aggregate. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s 's beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation ~~(each as defined below)~~ to any Person (each, a “"Transferee”") unless ~~such transfer complies with~~ the ~~transfer restrictions specified in the Indenture,~~ Transferee is a Permitted Transferee and prior to the ~~transfer~~ Transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment ~~Letter and~~ Letter. A transferring Purchaser shall promptly notify the ~~Funding Agents have provided their prior written consent~~ Servicer of each Transfer other than (x) an Assignment (with respect to ~~such Transfer. Notwithstanding~~ which the ~~foregoing, the Conduit Purchaser (if the Conduit Purchaser~~ Administrative Agent is ~~Autobahn Funding Company LLC) may, in its sole discretion at any time, assign its rights, obligations (if any~~obligated to deliver notice) and ~~interests under this Agreement~~ (y) a pledge or hypothecation to ~~the Cost of Funds Bank~~ a Support Party by a Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be which is a Conduit ~~Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer~~Purchaser. Each of ~~the Issuer~~AWC, the Depositor, the ~~Seller~~ Receivables Seller, the Issuer, AmeriCredit and the Servicer authorizes each Purchaser to disclose to any Transferee and Support Party and any prospective Transferee or Support Party any and all ~~financial~~ confidential information in the Purchaser’s 's possession concerning this Agreement or the ~~Seller,~~ Related Documents or concerning the ~~Servicer, the Depositor and the Issuer~~ Receivables or such party which has been delivered to ~~the related Funding~~ any Agent or such Purchaser pursuant to this Agreement or the ~~Transaction~~ Related Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of AWC, the Depositor, the Receivables Seller, the Issuer, ~~the Depositor or~~ AmeriCredit and the Servicer in connection with such Purchaser~~’s credit~~ 's evaluation of the Receivables, AWC, the Depositor, the Receivables Seller, the Issuer, ~~the Depositor~~ AmeriCredit or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, ; provided that ~~each~~ prior to any such ~~Transferee~~disclosure, such Transferee or Support Party or prospective Transferee ~~agrees~~ or Support Party shall have agreed in writing to ~~maintain~~ comply with the confidentiality provisions of Section 6.2, and a copy of such ~~information pursuant~~ written agreement as to compliance has been finished to the ~~following paragraph. Each Funding Agent~~ Servicer and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by such Funding Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the ~~other Transaction Documents shall be held in confidence~~ Administrative Agent. (~~it being understood that documents provided to a Funding Agent hereunder may in all cases be distributed by such Funding Agent to the Purchasers in its Purchaser Group~~d) except that such Funding Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Funding Agent or such Purchaser, (iii) to the extent such information was available to such Funding Agent or such Purchaser on a nonconfidential basis prior to its disclosure to such Funding Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent such Funding Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi) such Funding Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. Each Purchaser may, in accordance with applicable ~~law (which includes applicable securities laws)~~law, at any time grant participations in all or part of ~~its Commitment or~~ its interest in the Notes, including the payments due to it under this Agreement and the ~~Indenture~~ Related Documents (each, a “"Participation”"), to any ~~Person~~ Permitted Transferee (~~each~~each such Permitted Transferee, a “"Participant”"); provided, however, that no Participation shall be granted to any Person (i) unless and until the ~~Funding Agents~~ Agent for such Purchaser's Purchaser Group shall have consented ~~thereto~~ thereto, (~~which consent shall be in each Funding Agent’s sole discretion~~ii) ~~and~~ the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been ~~satisfied~~ satisfied, and (iii) that such Participation consists of a pro rata percentage interest in all ~~principal~~ payments made with respect to such Purchaser’s 's beneficial interest (if any) in the ~~Notes and a specified interest rate on the principal balance of such Participation~~Notes. In connection with any such Participation, ~~the related Funding~~ each Agent for a Purchaser Group shall maintain a register of each Participant of members of its Purchaser Group and the amount of each related Participation. Each Purchaser hereby acknowledges and agrees that (iA) any such Participation will not alter or affect such Purchaser’s 's direct obligations hereunder, and (iiB) ~~none of~~ neither the Indenture Trustee, the Issuer, the Depositor, the Master Servicer, the Receivables Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Purchaser and each Participant shall comply with the provisions of subsection 2.4(c) of this Agreement. No Participant shall be entitled to ~~transfer~~ Transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~Agent for its Purchaser Group. Each Participant shall be entitled to receive additional amounts and indemnification pursuant to ~~Section~~ Sections 2.3, 2.4 and 2.5 hereof ~~(but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such ~~Section~~ Sections applied to its Participation; provided, in the case of Section 2.4, that such Participant has complied with the provisions of subsection 2.4(c) hereof as if it were a Purchaser; provided, further, no Participant shall be entitled to receive additional amounts or indemnification in amounts in excess of those the participating Purchaser would have been entitled to receive in respect of the amount of the participation transferred to such Participant had no such participation occurred. Each Purchaser shall give the ~~Funding Agents~~ Agent for its Purchaser Group notice of the consummation of any sale by it of a Participation. It shall be a further condition to the grant of any Participation that the Participant shall have certified, represented and warranted that (i) it is entitled to (A) receive payments with respect to its participation without deduction or withholding of any United States federal income taxes and (B) an exemption from United States backup withholding tax, and (ii) to the ~~related Funding Agent (upon receipt of notice from the related Purchaser) shall promptly notify~~ extent such Participant has not otherwise directly provided such forms to the Issuer, the Receivables Seller, the Servicer and the Indenture Trustee~~. Unless separately agreed~~ , (A) prior to ~~between~~ the ~~related Purchaser~~ date on which the first interest payment is due to such Participant, such Participant will provide to the Issuer, AWC, the Depositor, the Servicer and Indenture Trustee, the forms described in subsection 2.4(c) (subject to the Issuer's consent, as applicable and as set forth therein) as though the Participant were a Purchaser, and (B) such Participant similarly will provide subsequent forms as described in ~~the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except~~ subsection 2.4(c) with respect to ~~those matters set forth in clauses~~ such participant as though it were a Purchaser. (ie) ~~and (ii) of the proviso to Section 9.1 hereof.~~ Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion) and the Servicer (which shall not unreasonably be withheld)~~ Agent for its Purchaser Group and in accordance with applicable ~~law (which includes applicable securities laws)~~law, ~~sell~~ sell, transfer or assign (each, an “"Assignment”"), to any ~~Person~~ Permitted Transferee (each, an “"Assignee”") all or any part of ~~its Commitment or~~ its interest in the Notes and its rights and obligations under this Agreement and the ~~Indenture~~ Related Documents pursuant to an agreement substantially in the form attached hereto as Exhibit C B hereto (a “"Transfer Supplement”"), executed by such Assignee and ~~the~~ such Purchaser and delivered to the ~~Funding Agents and the Servicer~~ Agent for ~~their~~ its Purchaser Group for its acceptance and consent; provided, however, that (i) no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied~~; provided~~, ~~further, however, that neither~~ (ii) no assignment or sale by a Committed Purchaser shall be effective without the consent of the ~~Servicer nor~~ CP Conduit in its Purchaser Group, (iii) no assignment or sale which results in the ~~Funding Agents~~ addition of a new Purchaser Group shall be effective without the consent of the Administrative Agent (which consent shall not unreasonably be withheld), and (iv) in no event shall the consent of an Agent, the Administrative Agent or the Issuer be required in the case of an assignment by a CP Conduit of its interest in the Notes and its rights and obligations under this Agreement and the Related Documents to any ~~existing Purchaser to another existing Purchaser~~ one or more of its Committed Purchasers in its Purchaser ~~Group~~Group or to any Support Party with respect to such CP Conduit; ~~and~~ provided, further, however, ~~that neither~~ that, with respect to (x) any Assignment by one member of a Purchaser Group to another Person already a member of such Purchaser Group of its rights with respect to the ~~consent~~ Note and (y) any Assignment by a CP Conduit to another CP Conduit administered by the same Agent, it shall not be necessary to execute a Transfer Supplement so long as the Agent for the transferee Purchaser Group gives prompt written notice of such Assignment to the Administrative Agent, the Servicer ~~nor~~ and the ~~Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of a Funding Agent~~Issuer. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any, and other~~ obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding Percentages~~ Percentage Interests arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent for the applicable Purchaser Group (or, in the case of an Assignment by which a new Purchaser Group is added to this Agreement, the Administrative Agent) shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Receivables Seller, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s 's beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer of such Purchaser’s 's Note(s) (if applicable) and delivery to the Issuer ~~and the Indenture Trustee~~ of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the ~~related Funding~~ applicable Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in ~~the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of~~ the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (f) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (g) Any Purchaser shall have the option to change its Investing Office. , provided that such Purchaser shall have prior to such change in office complied with the provisions of subsection 2.4(c) hereof and provided further that such Purchaser shall not be entitled to any amounts otherwise payable under Section 2.3 or 2.4 hereof resulting solely from such change in office unless such change in office was mandated by applicable law or by such Purchaser's compliance with the provisions of this Agreement. (h) Each ~~Affected~~ Support Party shall be entitled to receive additional payments and indemnification pursuant to ~~Section~~ Sections 2.3, 2.4 and 2.5 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes; provided that such Support Party shall not be entitled to additional payments pursuant to (i) Section 2.3 by reason of Regulatory Changes which occurred prior to the date it became a Support Party or (ii) Section 2.4 attributable to its failure to satisfy the requirements of subsection 2.4(c) as if it were a Purchaser, and provided further, that unless such Support Party is a Permitted Transferee or has been consented to by the Issuer, such Support Party shall be entitled to receive additional amounts pursuant to Sections 2.3 or 2.4 only to the extent that its related CP Conduit would have been entitled to receive such amounts in the absence of the commitment and Support Advances from such Support Party; provided, further, no Participant shall be entitled to receive additional amounts or indemnification in amounts in excess of those the participating Purchaser would have been entitled to receive in respect of the amount of the participation transferred to such Participant had no such participation occurred. (i) Each Support Party claiming increased amounts described in Sections 2.3 or 2.4 hereof shall furnish, through its related CP Conduit, to the Issuer, the Receivables Seller, the Servicer, the Indenture Trustee and the Agent for the applicable Purchaser Group a certificate setting forth the basis and amount of each request by such Support Party for any such amounts referred to in Sections 2.3 or 2.4, such certificate to be conclusive with respect to the factual information set forth therein absent manifest error. (j) In the event that a Purchaser (or a Participant or Support Party for such Purchaser) is entitled to receive additional payments pursuant to Section 2.3 or 2.4 hereof, the Issuer shall have the right to seek a Replacement Purchaser not so affected and which is reasonably acceptable to the Agent for such Purchaser Group to replace such affected Purchaser. No replacement of a Purchaser shall be effected pursuant to this subsection 8.1(j) if, after giving effect thereto, any amounts shall be owing to the replaced Purchaser hereunder. Each affected Purchaser hereby agrees to take all actions reasonably necessary to permit a Replacement Purchaser to succeed to its rights and obligations hereunder.

Appears in 1 contract

Samples: Note Purchase Agreement (Americredit Corp)

Transfers of Notes. (a) Each of ~~Funding Agents~~ the Agent and the Purchasers agrees that any interest in the Notes purchased or otherwise acquired by it will be acquired for investment only and not with a view to any distribution thereof, and that it will not offer to sell or otherwise dispose of any Note acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or the registration or qualification requirements of any applicable state or other securities laws. Each of the ~~Funding Agents~~ Agent and the Purchasers acknowledges that it has no right to require the Issuer to register, under the Securities Act or any other securities law, the Notes (or any interest therein) acquired by it pursuant to this Agreement, any Joinder Supplement or any Transfer Supplement. Each of the ~~Funding Agents~~ Agent and the Purchasers hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Notes, it has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. . (b) Each Purchaser which executes a Joinder ~~Supplement~~ Agreement agrees that it will comply with all transfer restrictions specified in the Indenture and will execute and deliver to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent on or before the effective date of its Joinder ~~Supplement~~ Agreement a letter in the form attached hereto as Exhibit A (an “Investment Letter”) with respect to the purchase by such Purchaser of an interest in the Notes. Each initial purchaser of a Note or any interest therein and any Assignee thereof or Participant therein shall certify to the Issuer, the Seller, the Servicer, the Depositor, the Indenture Trustee and the ~~Funding Agents~~ Agent that it is either (A)(i) a citizen or resident of the United States, (ii) a corporation or partnership (or any other entity treated as a corporation or a partnership for federal income tax purposes) organized in or under the laws of the United States or any political subdivision thereof which, if such entity is a tax-exempt entity, recognizes that payments with respect to the Notes may constitute unrelated business taxable income or (iii) a person not described in (i) or (ii) whose income from the Notes is and will be effectively connected with the conduct of a trade or business within the United States (within the meaning of the Code) and whose ownership of any interest in a Note will not result in any withholding obligation with respect to any payments with respect to the Notes by any Person and who ~~will, prior to the applicable Transfer of a Note,~~ will furnish to the ~~Issuer, the Funding Agents~~Agent, the Seller, the Servicer and the Indenture Trustee, and to the ~~Person~~ Owner making the Transfer a properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any successor ~~forms~~form) (and ~~agrees~~ to agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws), (B) an estate the income of which is includible in gross income for United States federal income tax purposes or (C) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust. . (c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a “Transfer”) of a Note or any interest therein may be made only in accordance with this Section 8.1. Any Transfer of a ~~Note or~~ Note, an interest in a ~~Note~~ Note, or any Commitment Percentage shall be in respect of at least $1,000,000 of the outstanding principal under the Notes. Any Transfer of an interest in a Note otherwise permitted by this Section 8.1 will be permitted only if it consists of a pro rata percentage interest in all payments made with respect to the Purchaser’s beneficial interest in such Note. No Note or any interest therein may be Transferred by Assignment or Participation (each as defined below) to any Person (each, a “Transferee”) unless such transfer complies with the transfer restrictions specified in the ~~Indenture,~~ Indenture and prior to the transfer the Transferee shall have executed and delivered to the Agent and the Issuer an Investment ~~Letter and the Funding Agents have provided their prior written consent to such Transfer. Notwithstanding the foregoing, the Conduit Purchaser~~ Letter. (~~if the Conduit Purchaser is Autobahn Funding Company LLC~~d) may, in its sole discretion at any time, assign its rights, obligations (if any) and interests under this Agreement to the Cost of Funds Bank Purchaser in its Purchaser Group so long as such Cost of Funds Bank Purchaser then assumes all obligations (if any) of such Conduit Purchaser under this Agreement and, at or after such time, the Conduit Purchaser may, in its sole discretion, cease to be a Conduit Purchaser and a Purchaser under this Agreement upon providing notice of such cessation to the Issuer and the Servicer. Each of the Issuer, the Depositor, the Seller and the Servicer authorizes each Purchaser to disclose to any Transferee and any prospective Transferee any and all financial information in the Purchaser’s possession concerning the Seller, the Servicer, the Depositor and the Issuer which has been delivered to the ~~related Funding~~ Agent or such Purchaser pursuant to the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Purchaser by or on behalf of the Seller, the Issuer, the Depositor or the Servicer in connection with such Purchaser’s credit evaluation of the Seller, the Issuer, the Depositor or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Notes, provided that each such Transferee, prospective Transferee agrees in writing to maintain the confidentiality of such information pursuant to the following paragraph~~. Each Funding~~ . (e) The Agent and each Purchaser, severally and with respect to itself only, covenants and agrees that any information obtained by ~~such Funding~~ the Agent or such Purchaser pursuant to, or otherwise in connection with, this Agreement or the other Transaction Documents shall be held in confidence (it being understood that documents provided to ~~a Funding~~ the Agent hereunder may in all cases be distributed by ~~such Funding~~ the Agent to the ~~Purchasers in its Purchaser Group~~Purchasers) except that ~~such Funding~~ the Agent or such Purchaser may disclose such information (i) to its officers, directors, members, employees, agents, counsel, accountants, auditors, advisors or representatives who have an obligation to maintain the confidentiality of such information, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through ~~such Funding~~ the Agent or such Purchaser, (iii) to the extent such information was available to ~~such Funding~~ the Agent or such Purchaser on a nonconfidential basis prior to its disclosure to ~~such Funding~~ the Agent or such Purchaser in connection with this transaction, (iv) with the consent of the Servicer, (v) to the extent permitted by the preceding paragraph, or (vi) to the extent ~~such Funding~~ the Agent or such Purchaser should be (A) required in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (vi~~) such Funding~~ ), the Agent or such Purchaser, as the case may be, will (unless otherwise prohibited by law or in connection with regular regulatory reviews) notify the Issuer of its intention to make any such disclosure as early as practicable prior to making such disclosure and cooperate with the Servicer in connection with any action to obtain a protective order with respect to such disclosure. . (f) Each Purchaser may, in accordance with applicable law (which includes applicable securities laws), at any time grant participations in all or part of its Commitment or its interest in the Notes, including the payments due to it under this Agreement and the Indenture (each, a “Participation”), to any Person (each, a “Participant”); provided, however, that no Participation shall be granted to any Person unless and until the ~~Funding Agents~~ Agent shall have consented thereto (which consent shall not be ~~in each Funding Agent’s sole discretion~~unreasonably withheld) and the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied and that such Participation consists of a pro rata percentage interest in all principal payments made with respect to such Purchaser’s beneficial interest (if any) in the Notes and a specified interest rate on the principal balance of such Participation. In connection with any such Participation, the ~~related Funding~~ Agent shall maintain a register of each Participant and the amount of each Participation. Each Purchaser hereby acknowledges and agrees that (i) any such Participation will not alter or affect such Purchaser’s direct obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the Depositor, the Seller nor the Servicer shall have any obligation to have any communication or relationship with any Participant. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the ~~Funding Agents~~Agent. Each Participant shall be entitled to receive indemnification pursuant to Section 2.4 hereof ~~(but shall not be entitled to indemnification under any other Section of this Agreement)~~ as if such Participant were a Purchaser and such Section applied to its Participation. Each Purchaser shall give the ~~Funding Agents~~ Agent notice of the consummation of any sale by it of a Participation, and the ~~related Funding~~ Agent (upon receipt of notice from the related Purchaser) shall promptly notify the Issuer, the Servicer and the Indenture Trustee. Unless separately agreed to between the related Purchaser and the Participant in the related participation agreement, no Participant shall have the right to approve any amendment or waiver of the terms of this Agreement except with respect to those matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof. . (g) Each Purchaser may, with the consent of the ~~Funding Agents (in their sole discretion)~~ Agent and the Servicer (which shall not unreasonably be withheld) and in accordance with applicable law (which includes applicable securities laws), sell or assign (each, an “Assignment”), to any Person (each, an “Assignee”) all or any part of its Commitment or its interest in the Notes and its rights and obligations under this Agreement and the Indenture pursuant to an agreement substantially in the form attached hereto as Exhibit C hereto (a “Transfer Supplement”), executed by such Assignee and the Purchaser and delivered to the ~~Funding Agents~~ Agent and the Servicer for their acceptance and consent; provided, however, that no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in ~~subsections 8.1(b) and (c~~subsection 8.1(c) hereof, shall have been satisfied; provided, further, however, that neither the consent of the Servicer nor the Funding Agents shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser in its Purchaser Group; and provided, further, however, that neither the consent of the Servicer nor the ~~Funding Agents~~ Agent shall be required in the case of an assignment by any existing Purchaser to another existing Purchaser, or in the case of any assignment to any Affiliates of ~~a Funding~~ the Agent. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of a Purchaser hereunder as set forth therein and (y) the transferor Purchaser shall, to the extent provided in such Transfer Supplement, be released from its ~~Commitment, if any,~~ Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of ~~Funding~~ Percentage Interests, Commitment Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the ~~related Funding~~ Agent shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee. Upon instruction to register a transfer of a Purchaser’s beneficial interest in the Notes (or portion thereof) and surrender for registration of transfer such Purchaser’s Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Indenture Trustee of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such beneficial interest in the Notes (or portion thereof) shall be transferred in the records of the Indenture Trustee and the ~~related Funding~~ Agent and, if requested by the Assignee, new Notes shall be issued to the Assignee and, if applicable, the transferor Purchaser in amounts reflecting such Transfer as provided in the Indenture. Such Transfers of Notes (and interests therein) shall be subject to this Section 8.1 in lieu of any regulations which may be prescribed under Section 6.3 of the Indenture. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register. . (h) Each Purchaser may pledge its interest in the Notes to any Federal Reserve Bank as collateral in accordance with applicable law. . (i) Any Purchaser shall have the option to change its Investing Office. . (j) Each Affected Party shall be entitled to receive indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Notes.

Appears in 1 contract

Samples: Note Funding Agreement (Bluegreen Corp)

Common use of Transfers of Notes Clause in Contracts