Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 3 contracts
Sources: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund), Revolving Credit and Security Agreement (HPS Corporate Lending Fund)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default under Section 6.01(a) (solely with respect to principal or interest), Section 6.01(i), Section 6.01(k) or Section 6.01(l) shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if or, unless an Event of Default under Section 6.01(a) (solely with respect to principal or interest), Section 6.01(i), Section 6.01(k) or Section 6.01(l) has occurred and is continuing) continuing at the time of such assignment, any Disqualified Lender shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.1713.17 and (E) unless an Event of Default under Section 6.01(a) (solely with respect to principal or interest), Section 6.01(i), Section 6.01(k) or Section 6.01(l) has occurred and is continuing at the time of such assignment, such Participants are not Disqualified Lender. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) (it being understood that the documentation required under Section 13.03(g) shall be delivered to the participating Lender) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
(g) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, any Lender (an “Existing Lender”) that assigns any or all of its Individual Lender Maximum Funding Amount to a Repackaging SPV (the “Repackaging SPV Transferred Interests”), shall:
(i) continue to be subject to all the obligations of such Existing Lender which correspond to that portion of the Existing Lender’s Individual Lender Maximum Funding Amount and participations in Advances forming the Repackaging SPV Transferred Interests, such that the Existing Lender and the Repackaging SPV are jointly and severally liable for all the obligations in respect of the Repackaging SPV Transferred Interests and the Borrower shall have the corresponding rights against each of the Existing Lender and the Repackaging SPV, provided that upon any repayment of Advances to the Repackaging SPV the corresponding increase in the Individual Lender Maximum Funding Amount of the Repackaging SPV and the right of the Repackaging SPV to re-lend monies pursuant to this Agreement shall be assumed solely by the Existing Lender and not the Repackaging SPV if the Existing Lender so notifies the Borrower, the Investment Advisor and the Administrative Agent;
(ii) fund the Repackaging SPV Transferred Interests in respect of that Advance by 2:00 pm (New York time) on the applicable Borrowing Date if the relevant Repackaging SPV has failed to so fund (or has confirmed that it will not be able to fund or to the extent the Existing Lender and the Repackaging SPV have otherwise agreed that Existing Lender will provide the relevant funding) on the applicable Borrowing Date; and
(iii) retain exclusive control over all rights and obligations with respect to the Repackaging SPV Transferred Interests, including all rights with respect to voting, waivers, consents, modifications, amendments and any confirmations as to satisfaction of any requirements hereunder or under any Facility Document.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)
Assignability. This Agreement shall not be assignable by any Party hereto without the prior written consent of the other Party except that (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, Buyer may assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event Affiliate of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein Buyer without the prior written consent of Seller provided that such assignee continues to be an Affiliate of Buyer; (b) Seller may assign its rights and obligations hereunder to any acquiror of all or substantially all of the Agents assets of Seller, including an assignment by operation of law, without the prior written consent of Buyer and (c) Seller may assign any or all of its right to receive payments hereunder without the Lenders.
prior written consent of Buyer; provided, however, that no such assignment by any Party shall relieve such Party of any of its obligations hereunder; provided, further, no such assignment, or series or assignments, shall result in either (i) Any Lender mayBuyer being obligated to pay the Purchase Price or any portion thereof to more than one Person, without the consent of(ii) Buyer being required to register, but or being deemed to be in violation of registration obligations with notice respect to, any securities under the BorrowerSecurities Act of 1933, sell participations to Participants in all as amended, or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (becoming subject to the reporting requirements and limitations set forth of the Securities Exchange Act of 1934, as amended, pursuant to Section 12(b), 12(g) or 15(d) thereof, or becoming subject to the application of similar securities laws in Section 13.03any other jurisdiction, including the requirements under Section 13.03(g)); provided that or (Aiii) such Participant agrees Buyer being deemed to be subject in privity of contract with, or to owe fiduciary duties directly to, more than five Persons (excluding holders of securities that are unrelated to the transactions pursuant to this Agreement), in each case without Buyer’s prior written consent. Any assignment contrary to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant 6.8 shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to null and void. To the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion assignment by Buyer of its rights and or obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating hereunder to a Participant’s interest in any commitments, loans person or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of entity outside the United States Treasury Regulations and Section 1.163-5(b) of or Canada would result in adverse withholding tax consequences to Seller, Buyer shall pay Seller additional amounts sufficient to put Seller in the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and position Seller would have occupied but for such Lender shall treat each Person whose name is recorded in such Participant Register as the owner transfer or exercise of such participation for all purposes of this Agreement notwithstanding any notice rights or obligations, limited to the contrary. For the avoidance amount of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing withholding pursuant to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) applicable reduced withholding tax rate provided for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Noteapplicable income tax treaty, if any, evidencing between Canada and the same) may be assigned jurisdiction of the party exercising Buyer’s rights or sold in whole or in part only by registration subject to Buyer’s obligations, provided that the benefits of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amountstreaty are available.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 3 contracts
Sources: Option Agreement (QLT Inc/Bc), Asset Purchase and Sale Agreement (QLT Inc/Bc), Option Agreement (QLT Inc/Bc)
Assignability. (a) Each Lender may, with This Agreement shall be binding upon and inure to the consent benefit of the Administrative Agent Parties and the Borrowertheir respective successors and permitted assigns; provided, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by ithowever, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower Carrier may not assign its rights or delegate its obligations hereunder or any interest herein under this Agreement without the express prior written consent of UTC, (ii) Otis may not assign its rights or delegate its obligations under this Agreement without the Agents express prior written consent of UTC, (iii) UTC may not assign its rights or delegate its obligations with respect to Carrier under this Agreement without the express prior written consent of Carrier and (iv) UTC may not assign its rights or delegate its obligations with respect to Otis under this Agreement without the Lendersexpress prior written consent of Otis.
(ib) Any Lender mayNotwithstanding the foregoing and without limiting UTC’s rights pursuant to Section 5.03(c), without no consent shall be required pursuant to Section 8.08(a) for the consent of, but with notice to, the Borrower, sell participations to Participants in all or assignment of a portion of such LenderParty’s rights and obligations under this the Separation and Distribution Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with Ancillary Agreements in whole (i.e., the assignment of such Lender in connection with such LenderParty’s rights and obligations under the Separation and Distribution Agreement, this Agreement and all the other Ancillary Agreements all at the same time) in connection with a merger, consolidation or other business combination of such Party with or into any other Person or a sale of all or substantially all of the assets of such Party to another Person, in each case so long as the resulting, surviving or acquiring Person assumes all the obligations of such applicable Party by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the Party or Parties whose consent would otherwise be required pursuant to Section 8.08(a). The Parties agree that if Carrier or Otis divests a business or portion of a business to a third party buyer while such business (Eor portion thereof, as applicable) each Participant is receiving Services under this Agreement, and the unavailability of the Services for the remaining applicable Service Period would materially and adversely impact such divested business (or portion thereof, as applicable) or Carrier’s or ▇▇▇▇’, as applicable, ability to successfully complete such divestiture, upon the written request of Carrier or ▇▇▇▇, as applicable, UTC and Carrier or ▇▇▇▇, as applicable, will cooperate in good faith and use commercially reasonable efforts to agree on a mutually acceptable and commercially reasonable plan to permit such divested business (or portion thereof, as applicable), but, for clarity, not any portion of the applicable third party buyer’s businesses or operations other than solely such divested business (or portion thereof, as applicable), to continue to receive the applicable Services during the remaining applicable Service Period consistent with the terms and conditions hereof, such plan to include, if mutually acceptable and commercially reasonable, any appropriate set-up or similar activities to segregate, as appropriate, the services provided to the divested business (or portion thereof, as applicable) from those provided to Carrier or ▇▇▇▇, as appropriate, and if and when such plan to segregate the services for such divested business (or portion thereof, as applicable) is mutually agreed (or if not mutually agreed, so long as UTC and Carrier or ▇▇▇▇, as applicable, shall have agreed to be bound by this Section 13.06(cdetermined that such plan is not necessary after cooperating in good faith), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation UTC shall provide that such Lender shall retain services to such divested business (or portion thereof, as applicable) on the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreementterms set out herein; provided that (a) the third party buyer, pursuant to an agreement with Carrier or ▇▇▇▇, as applicable, assumes all obligations of Carrier or ▇▇▇▇, as applicable, under this Agreement in respect of such divested business (or portion thereof) and such applicable Services which agreement may provide shall be in form and substance reasonably satisfactory to UTC, and shall also specify that such Lender will not, without other than the consent preparation for and provision of the Participantapplicable Services and any necessary interaction with the third party buyer in connection therewith, agree to any Fundamental Amendment. Sections 2.10UTC need only communicate and interact with Carrier or ▇▇▇▇, 2.11as applicable, and 13.03 not such third party buyer, including with respect to invoicing, for which UTC shall apply invoice Carrier or ▇▇▇▇, as applicable, and Carrier or ▇▇▇▇, as applicable, shall remit payment to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to UTC, (b) notwithstanding the foregoing clause (a) of and in addition to (but not in duplication of) its other indemnification obligations (if any) under the Separation and Distribution Agreement, this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03Agreement or any other Ancillary Agreement, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, Carrier or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ , as nonfiduciary agent for the Borrower applicable, shall maintain a register on which it enters the name indemnify, defend and address hold harmless UTC, its Subsidiaries and each of all participants in the Advances held by it their respective Representatives, and the principal amount of (and stated interest on) each of the portion successors and assigns of any of the Advance which is foregoing, from and against any and all Liabilities relating to, arising out of or resulting from the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all sale, delivery or any portion of the Participant Register (including the identity provision of any Participant or any information relating such Services to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person such third party buyer (except to the extent that such disclosure is necessary Liability relates to, arises out of or results from UTC’s gross negligence, willful misconduct or fraud), and (c) the provision of such applicable Services to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register third party buyer shall be conclusive absent manifest errornot be materially more burdensome to UTC, its Subsidiaries and such Lender shall treat each Person whose name is recorded of their respective Representatives (either alone or in such Participant Register as the owner aggregate with all other Services hereunder) than the provision of such participation for all purposes of this Agreement notwithstanding any notice applicable Services prior to the contrary. For the avoidance of doubtsuch divestiture, the Administrative Agent (in its capacity as Administrative Agent) shall have including by requiring no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 greater amount or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy frequency of any such representations Services and being subject to no greater requirements or agreements standards (other than the segregation of the services as contemplated above); provided, further, that under no circumstances shall have been furnished UTC be required to agree to provide any such applicable Services to such third party buyer if doing so would adversely impact (other than de minimis impacts) the cost, burden, liability or risk associated with providing such applicable Services compared to the Borrower cost, burden, liability and (D) any risk associated with providing such representations applicable Services to Carrier or agreements shall run ▇▇▇▇, as applicable, prior to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding such divestiture, or otherwise cause any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice non-de minimis disruption to or consent of adverse impact on the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoUTC Business.
Appears in 3 contracts
Sources: Transition Services Agreement (Raytheon Technologies Corp), Transition Services Agreement (Otis Worldwide Corp), Transition Services Agreement (Carrier Global Corp)
Assignability. (a) Each Lender mayThe rights and obligations of Seller under this Agreement and the other Transaction Documents and under any Transaction shall not be assigned by Seller without the prior written consent of Buyer, which consent may be granted or withheld in Buyer’s sole discretion; provided, however, that Buyer shall not unreasonably withhold its consent to an assignment by Seller to an Affiliate of Seller provided such assignment is otherwise in compliance with all requirements of this Section 18.
(b) Buyer may assign its rights and obligations under this Agreement and the other Transaction Documents and/or under any Transaction or may issue one or more participation interests with respect to any or all of the Transactions, without the consent of, and without prior notice to, Seller, to any other Person, and, in connection therewith, may bifurcate or allocate (i.e. senior/subordinate) amounts owed to Buyer; provided, however, that, with the consent of the Administrative Agent respect to any such participation or assignment, unless and the Borrower, assign until Buyer has assigned or granted participations in and to an assignee all or a portion 100% of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itand the other Transaction Documents, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of Buyer shall act as exclusive agent for all participants or assignees in any dealings with Seller in connection with such Transactions (it being acknowledged and agreed that, notwithstanding the Borrower’s foregoing, and the Administrative Agent’s consent subject in any event to clause (ii) below, Buyer may grant to any such assignment participants or assignees consent or approval rights with respect to certain material decisions or actions under this Agreement or the Transaction Documents) and (Aii) Seller shall not be unreasonably withheld or delayed; (provided that a Lender may not make obligated to deal directly with any party other than Buyer in connection with such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee Transactions, or, with respect to such assignor; and
(ii) the Borrower’s consent assignments and participations, to pay or reimburse Buyer, assignee or participant for any such assignment pursuant to this Section 13.06(a) shall costs or other amounts that would not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, incurred had no assignment by any Lender to the Borrower or any of its Affiliates participation been issued or any Disqualified Institution (except if an made, as applicable; and provided, further, that so long as no Event of Default has occurred and is continuing) , Buyer shall be permitted.
(b) Borrower may not assign or grant participations in its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; hereunder to any of the parties listed on Exhibit X attached hereto or their respective Affiliates (collectively, “Prohibited Transferees”). Notwithstanding the foregoing, if an Event of Default shall have occurred and be continuing, Buyer may assign and/or grant participations in any and all of its rights and obligations to any Prohibited Transferee without notice to or consent of Seller. Seller shall reasonably cooperate at Buyer’s sole cost and expense with Buyer in connection with any assignment or participation, provided that (A) such participant is not a Disqualified Lender, (B) such LenderSeller’s obligations under this Agreement such Transaction are not increased and its rights under such Transaction are not impaired. Seller agrees that any assignee or participant shall remain unchanged, (C) such Lender shall remain solely responsible be entitled to the other parties hereto for the performance benefits of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e3(i) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 29 (subject to the requirements limitations and limitations set forth in Section 13.03, including the requirements under Section 13.03(g29 (it being understood that the applicable documentation required under Section 29(c) shall be delivered to the participating Buyer)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an that, no assignee under clause (a) of this Section 13.06 and (B) no Participant shall or participant will be entitled to any amount greater payment of Additional Amounts under Section 2.103(i) or Section 29, 2.11, than its assignor or 13.03 which is greater than the amount the related Lender participating Buyer would have been entitled to under any such Sections or provisions if receive with respect to the applicable participation had not occurredassigned or participated rights and obligations, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationpayment or Additional Amounts is otherwise set forth herein.
(iic) In Buyer shall, acting for this purpose as a non-fiduciary agent of Seller (the event that any Lender sells participations in any portion of its rights and obligations hereunder“Registrar”), such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register record of ownership (the “Register”) on which it enters is entered the name and address of all participants assignees of Buyer and each such assignee’s interest in the Advances held by it rights under this Agreement and the principal amount of other Transaction Documents. All assignments pursuant to Section 18 hereof shall be recorded on the Register. This provision is intended to be interpreted so that the indebtedness (and stated interest onfor federal income tax purposes, as set forth in Section 22(e)) evidenced by the Transaction Documents is treated as being in registered form in accordance with Section 5f.103-1(c) of the portion Treasury Regulations. The Register shall be available for inspection by Seller at any reasonable time and from time to time upon reasonable prior notice. The entries in the Register shall be conclusive absent manifest error, and Buyer and Seller shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer hereunder for all purposes of this Agreement. Buyer may, at any time, designate any other Person, including, subject to Seller’s consent in its sole discretion, Seller, to be the Advance successor Registrar.
(d) Each Buyer that sells a participation shall, acting for this purpose as a non-fiduciary agent of Seller, maintain a register on which is entered the subject name and address of each participant and such participant’s interest in the participation rights under this Agreement and the other Transaction Documents (the “Participant Register”); provided that that, no Lender Buyer shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitments, loans rights or its other obligations under any Facility Documentthis Agreement and the other Transaction Documents) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan rights or other obligation is obligations are in registered form under in accordance with Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a each Participant Register shall be conclusive absent manifest error, and such Lender the applicable Buyer shall treat each Person whose name is recorded in such Participant Register as the owner of such participation the related rights and obligations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything Subject to the contrary set forth herein or in any other Facility Documentforegoing, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) the other Transaction Documents and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser any Transactions shall be binding upon and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run inure to the benefit of the parties and be enforceable by their respective successors and assigns. Nothing in this Agreement or the Borrower.
(f) Notwithstanding other Transaction Documents, express or implied, shall give to any Person, other provision of this Section 13.06than the parties to the Transaction Documents and their respective successors and permitted assigns, any Lender may at any time pledge or grant a security interest in all benefit or any portion of its rights (including rights to payment of principal and interest) legal or equitable right, power, remedy or claim under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoTransaction Documents.
Appears in 3 contracts
Sources: Master Repurchase Agreement (NorthStar Real Estate Income II, Inc.), Master Repurchase Agreement (NorthStar Real Estate Income Trust, Inc.), Master Repurchase Agreement (Northstar Realty Finance Corp.)
Assignability. (a) Each The rights and obligations of the parties under this Agreement, the Note and under any Advance shall not be assigned by any Borrower without the prior written consent of Lender. Subject to the foregoing, this Agreement, the Note and any Advance shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Lender may, with upon at least five (5) Business Days’ notice to Borrowers, from time to time assign all or a portion of its rights and obligations under this Agreement, the consent Note and the other Facility Documents to any Eligible Person pursuant to executed assignment and acceptance by Lender and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the Administrative Agent percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the Borrowerapplicable rights and obligations of Lender hereunder, assign and (b) Lender shall, to an the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Anything herein to the contrary notwithstanding, no Eligible Person shall be entitled to receive any greater amount hereunder than Lender would be entitled to receive. Unless otherwise stated in the Assignment and Acceptance, Borrower Parties shall continue to take directions solely from Lender unless otherwise notified by Lender in writing. Lender may distribute to any prospective assignee any document or other information delivered to Lender by Borrower Parties.
(b) Lender, upon at least five (5) Business Days’ notice to Borrowers, may sell participations to one or more Eligible Persons in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itto any Eligible Person; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
however, that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) such Borrower, the Agents and the other Lenders Borrower Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this the other Facility Documents except as provided in Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement7; provided that no such agreement may provide that such Lender will not, without the consent of the Participant, agree restrictions shall apply with respect to any Fundamental Amendmentsale to any Affiliate of Lender or if an Event of Default has occurred and is continuing; and provided further that Lender shall act as agent for all purchasers, assignees and point of contact for Borrowers pursuant to agency provisions to be agreed upon by Lender, its intended purchasers and/or assignees and Borrowers. Borrowers agree that each participant shall be entitled to the benefits of Sections 2.106 and 7 (subject to the requirements and limitations therein, 2.11, and 13.03 including the requirements under Section 7(e) (it being understood that the documentation required under Section 7(e) shall apply be delivered to each Participant the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 6 or 7 with respect to any participation, 2.11, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change change in Requirement of Law that occurs after the Participant participant acquired the applicable participation. Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 20, disclose to the assignee or participant or proposed assignee or participant, as the case may be, any information relating to any Borrower Party or any of its Subsidiaries or to any aspect of the Advances that has been furnished to Lender by or on behalf of any Borrower Party or any of its Subsidiaries; provided that such assignee or participant agrees to hold such information subject to the confidentiality provisions of this Agreement.
(iic) In the event that any Lender sells participations in any assigns all or a portion of its rights and obligations hereunderunder this Agreement, such ▇▇▇▇▇▇ the parties hereto agree to negotiate in good faith an amendment to this Agreement to add agency provisions similar to those included in loan agreements for similar syndicated lending facilities.
(d) Lender hereby agrees that it shall, endorse the Note to reflect any assignments made pursuant to this Section 20 or otherwise.
(e) Lender, acting solely for this purpose as nonfiduciary a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the Borrower recordation of the names and addresses of the Lender (including any successor, assignee or participant), and the percentage of such rights and obligations assigned (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrowers and the Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers and the Lender, at any reasonable time and from time to time upon reasonable prior notice.
(f) The Lender, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of all participants in the Advances held by it each Participant and the principal amount percentage of (such rights and stated interest on) obligations of the portion of the Advance which is the subject of the participation each Participant hereunder (the “Participant Register”); provided that no Lender shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s 's interest in any commitments, loans or its other obligations under any Facility Documentherein) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation interest is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such the Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 3 contracts
Sources: Loan and Security Agreement (Front Yard Residential Corp), Loan and Security Agreement (Altisource Residential Corp), Loan and Security Agreement (Altisource Residential Corp)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) Lender shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17, and (E) such Participants are not Disqualified Lenders. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Barings Private Credit Corp), Revolving Credit and Security Agreement (Blackstone Private Credit Fund), Revolving Credit and Security Agreement (Barings Private Credit Corp)
Assignability. (a) No Borrower shall have the right to assign this Credit Agreement or any interest therein except with the prior written consent of the Lenders.
(b) Notwithstanding subsection (c) of this Section 14.6, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender’s Loans and Existing Commitments hereunder to its parent company and/or to any affiliate of such Lender or to any existing Lender or affiliate thereof. Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an affiliate of such Lender except to the extent such transfer would result in increased costs to any Borrower.
(c) Each Lender may, with the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed and such consent shall not be required in connection with any assignment by a Lender to its affiliates or managed funds or managed accounts (an “Exempt Assignment”) or in connection with a sale of all or a material portion of the Borrowerloan portfolio of such Lender (a “Portfolio Sale”)), but without the consent of any other Lender or other Person, assign to an assignee one or more Persons all or a portion of its rights and obligations under this Credit Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount)and the Notes; provided that:
that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (with a copy to the Collateral Agent) as defined below), an Assignment and Acceptance Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 to be paid by the assignee (such fee being waived in the case of an Exempt Assignment), (ii) no such assignment shall be for less than $5,000,000 or, if less, the entire remaining Existing Commitment or outstanding Term B Loans, as applicable, of such Lender, (iii) if such assignee is a Foreign Lender, all of the requirements of Section 2.7(b) shall have been satisfied as a condition to such assignment and (iv) other than in connection with an Exempt Assignment, each assignment of Existing Commitments or Existing Loans shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of the Existing Commitments and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06Existing Loans; provided, additionally, that, as long as no assignment by any Lender to the Borrower Default or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing, and other than to an affiliate of such Lender (or a fund or account managed by such Lender or one or more of its affiliates), no Lender shall have the right to make any such assignment and delegation to any entity which is not a financial institution or other entity which is not generally engaged in the business of buying, selling or funding transactions of the type contemplated hereby. Upon such execution and delivery of the Assignment and Acceptance to the Agent, from and after the date specified as the effective date in the Assignment and Acceptance, (x) the assignee thereunder shall be permitteda party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 14.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to be a party hereto).
(bd) Borrower may not assign its rights or obligations hereunder or Upon the occurrence and during the continuation of any interest herein without the prior written consent Event of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice toDefault, the BorrowerTerm B Lenders shall have the option to require any Lender that is not participating in the Term B Loans to assign, sell participations to Participants in at par plus all or a portion accrued interest and fees, all of such Lender’s rights and obligations under the Credit Agreement to the Term B Lenders so long as the parties provide for the termination of the Existing Commitment of each of the assigning Lenders and an increase in the Existing Commitments of one or more of the Term B Lenders accepting such assignment, so that the Existing Commitments, after giving effect to such assignment, shall be in the same aggregate amount as the Existing Commitments immediately before giving effect to such assignment. The foregoing right may be exercised by one or more of the Term B Lenders at any time upon notice to the Agent and the other Lenders, provided that the Agent shall thereupon notify the other Term B Lenders of the exercise of such option and each of the other Term B Lenders shall have five (5) Business Days to notify the Agent of such other Term B Lender’s intention to participate in such purchase on a pro rata basis with those other Term B Lenders which have elected to participate in the purchase. The Agent shall thereupon take all actions needed to complete the assignment in accordance with the same procedures used under subparagraph (c) above within five (5) additional Business Days and each of the Term B Lenders shall remit to the Agent for payment to the selling Lender the full amount of its purchase price. The Term B Lenders purchasing hereunder shall pay the assignment fee to the Agent as contemplated by Section 14.6(c) above.
(e) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Credit Agreement or any other instrument or document furnished pursuant hereto, (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the financial statements referred to in Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Credit Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender.
(f) The Agent shall maintain at its address referred to in Section 14.5 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the aggregate commitments of, and principal amount of the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by each Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together with the Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to each Borrower. Within five (5) Business Days after its receipt of such notice, each applicable Borrower shall execute and deliver to the Agent in exchange for the surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to the applicable Borrower) a new Note or Notes to the order of the assignee in an amount equal to the Existing Commitment and/or outstanding Term B Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained an Existing Commitment and/or outstanding Term B Loans, a new Note or Notes to the order of the assigning Lender in an amount equal to the Existing Commitment and/or outstanding Term B Loans retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the Closing Date and shall otherwise be in substantially the form of the Note or Notes subject to such assignments.
(h) Each Lender may sell participations (without the consent of the Agent, any Borrower or any other Lender) to one or more parties in or to any portion of its rights and obligations under this Credit Agreement (including, without limitation, any portion of its Existing Commitment, the Loans owing to it and the Note or Notes held by it); provided that (A) such participant is not a Disqualified Lender, (Bi) such Lender’s obligations under this Credit Agreement (including, without limitation, its Existing Commitment to any Borrower hereunder) shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Diii) such Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) each Borrower, the Agents Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement and (Ev) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain not transfer, grant, assign or sell any participation under which the sole right to enforce this Agreement and participant shall have rights to approve any amendment, modification amendment or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, Credit Agreement except to the extent such entitlement amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to receive a greater amount results from a Change the Loans or Letter of Credit reimbursement obligations in Law that occurs after the Participant acquired the applicable participationwhich such participant is participating, or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder.
(iii) Each Lender agrees that, without the prior written consent of each Borrower and the Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Note or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(j) In connection with the event that efforts of any Lender sells participations in any portion of to assign its rights and or obligations hereunderor to participate interests, such ▇▇▇▇▇▇ as nonfiduciary agent for the Lender may disclose any information in its possession regarding any Borrower.
(k) Each Borrower shall maintain maintain, or cause to be maintained, a register (the “Borrower Register”) on which it enters the name and address of all participants in each Lender as the Advances registered owner of the Loans held by it such Lender. A Registered Loan (and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, shall expressly so provideevidencing the same) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and may be effected only by registration of such assignment or sale on the Borrower from time to time Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such Registered Note, whereupon, at the request of the Collateral Agent designated assignee(s) or transferee(s), one or more new Registered Notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the Registered Note, if any evidencing the same), each Borrower an updated version shall treat the Person in whose name such Loan (and the Registered Note, if any, evidencing the same) is registered as the owner thereof for the purpose of Schedule 1 reflecting receiving all payments thereon and for all other purposes, notwithstanding notice to the then-current allocation of the Individual Lender Maximum Funding Amountscontrary.
(el) Notwithstanding anything to In the contrary set forth herein or in event that any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined sells participations in the Investment Company Act Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (a the “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIBParticipant Register”). Each Lender represents to A Registered Loan (and the BorrowerRegistered Note, (iif any, evidencing the same) may be participated in whole or in part only by registration of such participation on the date that it becomes a party to this Agreement Participant Register (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIBRegistered Note shall expressly so provide). Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time Any participation of such assignment or participationRegistered Loan (and the Registered Note, (Bif any, evidencing the same) such Person agrees that it will may be bound effected only by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations registration of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of participation on the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoParticipant Register.
Appears in 3 contracts
Sources: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (in each case not to be unreasonably withheld or delayed), assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided further that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a16.06(a) shall not be required if (x) an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.0116.01);
(iii) no assignment shall be made to a natural person; and
(iv) no assignment shall be made to the Borrower or (y) such assignment is required as a result any of any Change in Lawits Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral AgentAgent and the Borrower) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g16.03(g) and (j). Notwithstanding any other provision of this Section 13.0616.06, no assignment by any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its Affiliates obligations hereunder or substitute any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedsuch pledgee or grantee for such Lender as a party hereto.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e16.06(c) and Section 13.17Sections 15.09(b) and 15.15 and (E) each Participant shall have a short term rating of at least “A-2/P2” by S&P and M▇▇▇▇’▇, respectively. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 16.06(f) with respect to any Participant. Sections 2.09, 2.10, 2.11, and 13.03 16.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.09, 2.10, 2.11, or 13.03 16.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitmentsCommitments, loans Loans or its other obligations under any Facility Documentthis Agreement) to any Person except to the extent that such disclosure is necessary to establish that such commitmentCommitment, loan Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) Regulations. An Advance may be participated in whole or in part only by registration of such participation on the proposed United States Treasury RegulationsParticipant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 16.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance in accordance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts16.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Assignability. (a) Each Any Conduit Lender may, (i) with notice to the Borrower and the Servicer, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Conduit Lender’s sponsor or administrator bank, (C) any Affiliate of such Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Conduit Lender and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any other Person not listed in clause (i) above; provided, that the consent of the Borrower shall not be required if an Event of Termination has occurred and is continuing. Any Managing Agent may, with notice to the Borrower and the Servicer, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Lender or to any Affiliate of such Managing Agent or any Lender.
(b) Any Committed Lender may, with the consent of the Administrative Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and with the consent of the Managing Agent and for the BorrowerLender Group of which it is a member, assign to an assignee at any time all or a any portion of its rights and obligations under this Agreement hereunder and interests herein to any Person; provided, however, that the consent of the Borrower shall not be required in connection with any assignment by a Committed Lender (including all i) if an Event of Termination has occurred and is continuing or a portion of its outstanding Advances or interests therein owned by it(ii) to any other Lender.
(c) With respect to any assignment hereunder, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement; (ii) the Borrower’s and the Administrative Agent’s consent amount being assigned pursuant to any each such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) determined as of the date of the Assignment and (B) shall not be required if the assignee is a Permitted Assignee Acceptance with respect to such assignor; and
assignment) shall in no event be less than $10,000,000, and (iiiii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(d) At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The Aggregate Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment by any Lender to transfer of the Borrower Aggregate Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Administrative Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuingthis Agreement. This Section 10.03(d) shall be permittedconstrued so that the Aggregate Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the IRC, solely for the purposes of this Section 10.03, the Administrative Agent will act as an agent of the Borrower. The Register shall be available for inspection by the Borrower, the Servicer or any Managing Agent at any reasonable time and from time to time upon reasonable prior notice.
(be) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior written consent of Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the Agents information contained therein in the Register and (iii) give prompt notice thereof to the LendersBorrower.
(if) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loan); provided provided, that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such the Borrower, the Agents Administrative Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Facility Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Facility Documents; provided provided, that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10amendment, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by assignment pursuant to clause (a) of this Section 13.06 (subject the Borrower to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that Administrative Agent (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent relating to payments to the Participant) or delays any scheduled date for payment of such entitlement fees. The Borrower acknowledges and agrees that any Lender’s source of funds may derive in part from its Participants. Accordingly, references in Sections 2.11 or 2.13 and the other terms and provisions of this Agreement and the other Facility Documents to receive determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants; provided, however, that in no event shall the Borrower be liable to any Participant under Sections 2.11 or 2.13 for an amount in excess of that which would be payable to the applicable Lender under such sections other than as a greater amount results from result of a Change change in Law that occurs law after the Participant acquired its interest. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunderBorrower, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it each Participant and the principal amount of amounts (and stated interest oninterest) of each Participant’s interest in the portion of Loans or other obligations under the Advance which is the subject of the participation Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans loans, letters of credit or its other obligations under any Facility Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dg) The Administrative Agent, on behalf Neither the Borrower nor the Servicer may assign any of and acting solely for this purpose as its rights or obligations hereunder or any interest herein without the nonfiduciary agent prior written consent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsManaging Agent.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(fh) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to (i) a Federal Reserve BankBank or (ii) to a collateral agent or security trustee in connection with the funding by such Lender, without notice to or consent of the Borrower or the Administrative Agent; provided provided, that no such pledge or grant of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (Newell Brands Inc.), Loan and Servicing Agreement (Newell Brands Inc), Loan and Servicing Agreement (Newell Brands Inc)
Assignability. (a) Each Lender may, with This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the Administrative Agent GGP and the BorrowerSpinco, except that each Party may:
(i) assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion to any of its outstanding Advances Subsidiaries; provided, that no such assignment shall release GGP or interests therein owned by itSpinco, together as the case may be, from any liability or obligation under this Agreement;
(ii) in connection with ratable portions the divestiture of any Subsidiary or business of Spinco to an acquiror that is not a Competitor of GGP, assign to the acquiror of such Subsidiary or business its Individual Lender Maximum Funding Amount)rights and obligations as a recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided that:
provided, that (i) no such assignment shall release GGP or Spinco, as the case may be, from any liability or obligation under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, and (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Annexes and Schedules to this Agreement, that may be necessary or appropriate in order to assign such Services; and
(iii) in connection with the divestiture of any Subsidiary or business of Spinco to an acquiror that is a Competitor of GGP, assign to the acquiror of such Subsidiary or business its rights and obligations as a recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided, that (i) no such assignment shall release GGP or Spinco, as the case may be, from any liability or obligation under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Annexes and Schedules to this Agreement, that may be necessary or appropriate in order to ensure that such assignment will not (x) materially and adversely affect the businesses and operations of each of the Borrower’s Parties and the Administrative Agent’s consent their respective Subsidiaries or (y) create a competitive disadvantage for GGP with respect to any such assignment an acquiror that is a Competitor of GGP, and (Aiv) GGP shall not be unreasonably withheld or delayed; (provided that a Lender may not make obligated to provide any such assignment pursuant assigned Services to this clause (i)(A) to an acquiror that is a Disqualified Institution) and (B) shall not be required Competitor of GGP if the assignee is provision of such assigned Services to such acquiror would disrupt the operation of GGP’s businesses or create a Permitted Assignee competitive disadvantage for GGP with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedacquiror.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without in the prior written consent event of the Agents and the Lenders.
(i) Any Lender maymerger, without amalgamation or consolidation of Spinco and another Person, (ii) sale of all or substantially all of the consent assets of Spinco to another Person, (iii) the acquisition of a majority of the voting stock of Spinco by any Person or “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) or (iv) the election of, but with notice or appointment to, the Borrowerboard of directors of Spinco of directors constituting a majority of the directors then serving if such elected or appointed directors have not been nominated as directors by the Nominating Committee of the board of directors prior to their election or appointment, sell participations then the requirement of GGP to Participants in all or a portion provide Services hereunder shall automatically terminate without further action by the Parties 30 days after the occurrence of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationevent.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Transition Services Agreement (Rouse Properties, Inc.), Transition Services Agreement (Rouse Properties, Inc.)
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent Borrower (such consent not to be unreasonably withheld, conditioned or delayed) and the BorrowerAdministrative Agent, assign to an assignee any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have objected in writing within five (5) Business Days of receipt of any such request for consent; provided, further, that:
(i) each of neither the Borrower’s and nor the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is (A) a Permitted Assignee with respect to such assignor; andLender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (x) an Event of Default shall have occurred and be continuing;
(and not been waived by iii) notwithstanding anything herein to the Lenders in accordance contrary, each Lender may make an assignment to any Person (other than a Competitor) with Section 13.01) notice to, but without the consent of, the Borrower or (y) the Administrative Agent if such assignment is required as ▇▇▇▇▇▇ makes a result reasonable determination that its ownership of any Change of its rights or obligations hereunder is prohibited by Applicable Law; and
(iv) in Lawno event shall an assignment be made to a Competitor without the Borrower’s prior written consent unless an Event of Default shall have occurred and be continuing. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of Citibank). Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 13.03(g12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement, and to the extent of the interest assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender may be made to the Borrower Borrower, the Collateral Manager, the Equityholder or any of its their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Disqualified Institution Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (except if an Event of Default has occurred and is continuing) shall be permittedy).
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(i) Any Lender may, without the consent of, of (but with notice to, ) the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided . The Borrower agrees that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant shall be entitled to the benefits of Sections 2.09 and 12.03 (subject to the requirements and limitations therein, including the requirements under Section 12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Section; provided that such Participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 2.09 or 12.03, 2.11with respect to any participation, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.20 with respect to any Participant.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no . An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other rights and obligations under any Facility Documenthereunder) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is rights and obligations are in registered form under Section 5f.103-1(c) 1 of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and Agreement, each signature page hereto and hereto, each Assignment and Acceptance delivered to and accepted by it it, and a register (the “Register”) for the recordation of the names names, addresses and addresses wiring instructions of the Lenders and the aggregate outstanding principal amount of the outstanding Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of this Agreementthe Facility Documents. The Register shall be available for inspection by the Borrower Borrower, the Collateral Manager, the Collateral Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each NoteNote with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts12.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, Document and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3), and (7) of Rule 501(a) under the Securities Act (an “Accredited Investor”) and a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender severally represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerPurchaser.
(f) Notwithstanding any other provision of this Section 13.0612.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Credit and Security Agreement (Diameter Credit Co), Credit and Security Agreement (Diameter Credit Co)
Assignability. (a) This Agreement and each Transferee's ------------- rights and obligations herein (including rights in the Receivables) shall be assignable by each Transferee and its successors and assigns if the Administrative Agent shall have received confirmation from each of the Rating Agencies that such assignment will not result in the withdrawal or downgrade of the then-current ratings of PARCO's outstanding Commercial Paper; provided, that -------- no such confirmation shall be required if such assignment is made by PARCO to any other Transferee hereunder or to any Transferee that is a party to a liquidity facility supporting the Commercial Paper. Each Lender may, with the consent assignor of Receivables or any interest therein shall notify the Administrative Agent and the BorrowerTransferor of any such assignment; provided, assign that no such notice shall be -------- required if such assignment is made by PARCO to an any other Transferee hereunder or to any Transferee that is a party to a liquidity facility supporting the commercial paper notes of PARCO. Each assignor of Receivables may, in connection with the assignment or participation, disclose to the assignee all or a portion participant any information, relating to the Transferor or the Receivables, which was furnished to such assignor by or on behalf of its rights and obligations under this Agreement (including all the Transferor or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount)the Administrative Agent; provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent , prior to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if disclosure, the assignee is a Permitted Assignee with respect or participant agrees -------- to such assignor; and
(ii) preserve the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result confidentiality of any Change in Law. The parties to each such assignment shall execute and deliver confidential information relating to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required Transferor received by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or it from any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedthe foregoing entities.
(b) Borrower This Agreement and the rights and obligations of the Administrative Agent herein shall be assignable by the Administrative Agent and its successors and assigns; provided that any costs incurred by the Administrative Agent in -------- connection with such assignment shall be for the account of the Administrative Agent.
(c) The Transferor may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register, which consent will not be unreasonably withheld.
(d) The Administrative AgentWithout limiting any other rights that may be available under applicable law, on behalf of and acting solely for this purpose as the nonfiduciary agent rights of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) Transferees may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto enforced through them or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowertheir agents.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Receivables Transfer Agreement (Ikon Office Solutions Inc), Receivables Transfer Agreement (Ios Capital Inc)
Assignability. (a) Each Lender may, with The rights and obligations of Seller under this Agreement and the other Transaction Documents and under any Transaction shall not be assigned by Seller without the prior written consent of the Administrative Agent and the BorrowerBuyer, which consent may be granted or withheld in Buyer’s sole discretion.
(b) Buyer may assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to other Transaction Documents and/or under any such assignment (A) shall not be unreasonably withheld Transaction or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee issue one or more participation interests with respect to such assignor; and
(ii) any or all of the Borrower’s Transactions, without the consent of, and without prior notice to, Seller, to any such assignment pursuant other Person, and, in connection therewith, may bifurcate or allocate (i.e. senior/subordinate) amounts owed to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required Buyer; provided, that so long as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
, (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell Buyer shall not assign or grant participations to Participants in all or a portion of such Lender’s its rights and obligations under this Agreement; provided that hereunder to any Prohibited Transferee, and (Aii) such participant is not a Disqualified Lender, (B) such Lender’s obligations unless Buyer assigns and/or participates all of its interests under this Agreement to any Person that is not an Affiliate of Buyer, Buyer shall remain unchanged, (C) such Lender shall remain solely responsible maintain full control over all decisions to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations be made under this Agreement and each of the other Transaction Documents (E) each Participant shall have it being understood and agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce participants in Buyer’s rights under this Agreement and the other Transaction Documents may be entitled, pursuant to approve any amendment, modification or waiver the terms of any provision such participation, to certain consent rights (in each case, solely to the extent of Buyer’s rights under this Agreement; provided that ) over certain decisions and determinations deemed material under the terms of such agreement participation) and Seller shall not be required to interact with any Person other than Buyer or an Affiliate of Buyer. Notwithstanding the foregoing, if an Event of Default shall have occurred and be continuing, Buyer may provide that such Lender will not, assign and/or grant participations in any and all of its rights and obligations to any Prohibited Transferee without the notice to or consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11Seller, and 13.03 otherwise may assign or grant participations without limitations, restrictions or conditions of any kind. Seller shall apply reasonably cooperate at Buyer’s sole cost and expense with Buyer in connection with any assignment or participation, provided Seller’s obligations under such Transaction are not increased and its rights under such Transaction are not impaired. Seller agrees that any assignee or participant shall be entitled to each Participant as if it were a Lender the benefits of Sections 3(i) and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 29 hereof (subject to the requirements limitations and limitations set forth in Section 13.03, including the requirements under Section 13.03(g29 hereof (it being understood that the applicable documentation required under Section 29(e) hereof shall be delivered to the participating Buyer)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an that, no assignee under clause (a) of this Section 13.06 and (B) no Participant shall or participant will be entitled to any amount greater payment under Section 2.10Sections 3(i) or 29 hereof, 2.11, than its assignor or 13.03 which is greater than the amount the related Lender participating Buyer would have been entitled to under any such Sections or provisions if receive with respect to the applicable participation had not occurredassigned or participated rights and obligations, except to the extent such entitlement to receive a greater amount payment results from the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by a Change Governmental Authority or compliance by Buyer, assignee or such participant with a request or directive (whether or not having the force of law) from a central bank or other Governmental Authority having jurisdiction over Buyer, such assignee or such participant, in Law that occurs each case made or issued after the Participant participant or assignee acquired the applicable participationinterest.
(iic) In Buyer shall, acting for this purpose as a non-fiduciary agent of Seller (the event that any Lender sells participations in any portion “Registrar”), maintain at one of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for offices located in the Borrower shall maintain United States a register record of ownership (the “Register”) on which it enters is entered the name and address of all participants assignees of Buyer and each such assignee’s interest in the Advances held by it rights under this Agreement and the principal amount of other Transaction Documents. All assignments pursuant to Section 18 hereof shall be recorded on the Register. This provision is intended to be interpreted so that the indebtedness (and stated interest onfor federal income tax purposes, as set forth in Section 22(e) hereof) evidenced by the Transaction Documents is treated as being in registered form in accordance with Section 5f.103-1(c) of the portion Treasury Regulations. The Register shall be available for inspection by Seller at any reasonable time and from time to time upon reasonable prior notice. The entries in the Register shall be conclusive absent manifest error, and Buyer and Seller shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer hereunder for all purposes of this Agreement. Buyer may, at any time, designate any other Person, including, subject to Seller’s consent in its sole discretion, Seller, to be the Advance successor ▇▇▇▇▇▇▇▇▇.
(▇) Each Buyer that sells a participation shall, acting for this purpose as a non-fiduciary agent of Seller, maintain a register on which is entered the subject name and address of each participant and such participant’s interest in the participation rights under this Agreement and the other Transaction Documents (the “Participant Register”); provided that that, no Lender Buyer shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitments, loans rights or its other obligations under any Facility Documentthis Agreement and the other Transaction Documents) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan rights or other obligation is obligations are in registered form under in accordance with Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a each Participant Register shall be conclusive absent manifest error, and such Lender the applicable Buyer shall treat each Person whose name is recorded in such Participant Register as the owner of such participation the related rights and obligations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything Subject to the contrary set forth herein or in any other Facility Documentforegoing, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) the other Transaction Documents and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser any Transactions shall be binding upon and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run inure to the benefit of the parties and be enforceable by their respective successors and assigns. Nothing in this Agreement or the Borrower.
(f) Notwithstanding other Transaction Documents, express or implied, shall give to any Person, other provision of this Section 13.06than the parties to the Transaction Documents and their respective successors and permitted assigns, any Lender may at any time pledge or grant a security interest in all benefit or any portion of its rights (including rights to payment of principal and interest) legal or equitable right, power, remedy or claim under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoTransaction Documents.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Assignability. (a) Each Any Conduit Lender may assign at any time all or any portion of its rights and obligations hereunder and interests herein (i) without the consent of or prior notice to any party hereto, to any one or more of the Committed Lenders in its Lender Group, any Affiliate of its Administrative Agent, any Liquidity Provider for such Conduit Lender or any commercial paper conduit that is administered by the Administrative Agent of its Lender Group or such Administrative Agent's Affiliate, and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), to any other Person not listed in clause (i) above; provided that the consent of the Borrower shall not be required if an Event of Termination has occurred and is continuing.
(b) Any Administrative Agent may, with notice to the Borrower and the Servicer, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Lender or to any Affiliate of such Administrative Agent or any Lender.
(c) Any Committed Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and with the consent of the Administrative Agent and for the BorrowerLender Group of which it is a member, assign to an assignee at any time all or a any portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or hereunder and interests therein owned by itherein to any Person; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each however, that the consent of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) Borrower shall not be required in connection with any assignment by a Committed Lender (i) if the assignee an Event of Termination has occurred and is a Permitted Assignee with respect to such assignor; and
continuing or (ii) the Borrower’s consent to any other Lender or any Affiliate of such Committed Lender.
(d) With respect to any assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by hereunder, the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Program Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(e) At all times during which any Loan is outstanding, the Program Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Program Agent notified by the Program Agent to the other parties hereto) a register as provided herein (the "Register"). The Aggregate Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Principal Balance or any interest therein delivered to and accepted by the Program Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owners of the Aggregate Principal Balances and any interests therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment by any Lender to transfer of the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder Aggregate Principal Balances or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant therein shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have effective unless and until such transfer has been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants recorded in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Program Agent, the Administrative Agents and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder Lender, as the case may be, under this Agreement for all purposes of this Agreement. This Section 10.03(e) shall be construed so that the Aggregate Principal Balance and any interest therein is maintained at all times in "registered form" within the meaning of Sections 163(f), 871(h) and 881(c) of the IRC. Solely for the purposes of this Section 10.03, the Program Agent will act as an agent of the Borrower. The Register shall be available for inspection by the Borrower Borrower, the Servicer or any Lender Administrative Agent at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(ef) Notwithstanding anything to Upon its receipt of an Assignment and Acceptance, the contrary set forth herein or in any other Facility DocumentProgram Agent shall, each Lender hereunder, if such Assignment and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the BorrowerAcceptance has been duly completed, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an accept such Assignment and Acceptance) and , (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed record the information contained therein in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower Register and (Diii) any such representations or agreements shall run give prompt notice thereof to the benefit of and be enforceable by the Borrower.
(fg) Any Lender may, without the consent of the Borrower, sell participations to one or more banks or other entities (each, a "Participant") in all or a portion of its rights and obligations hereunder (including the outstanding Loan); provided, that following the sale of a participation under this Agreement, (i) the obligations of such Lender shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Program Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which such Lender sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Facility Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Facility Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Borrower to the Program Agent or such Lender's Administrative Agent, as applicable (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Borrower acknowledges and agrees that any Lender's source of funds may derive in part from its Participants. Accordingly, references in Sections 2.11 through 2.15 and the other terms and provisions of this Agreement and the other Facility Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants; provided, however, that in no event shall the Borrower be liable to any Participant under Sections 2.11 through 2.15 for an amount in excess of that which would be payable to the applicable Lender under such sections at such time.
(h) Neither the Borrower nor the Servicer may assign any of its rights or obligations hereunder or any interest herein without the prior written consent of the Program Agent and each Administrative Agent.
(i) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of the principal balance of the Loans made by it and interestInterest with respect thereto) under this Agreement hereunder pursuant to repurchase transactions or other financing transactions as part of such Lender's ordinary course of business, including to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Program Agent; provided that no such pledge or grant of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Harley Davidson Inc), Loan and Servicing Agreement (Harley Davidson Inc)
Assignability. (ai) Each Lender maySubject only to Sections 21(a) (ii) and (iii), with the consent of the Administrative Agent and the Borrower, neither Bank nor Retailer may assign to an assignee all or a portion of its rights and or delegate its obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender mayother party, without the which consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is will not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationunreasonably withheld.
(ii) In Section 21(a)(i) to the event that any Lender sells participations in any portion contrary notwithstanding, Bank may, without Retailer’s consent (i) assign all or part of its rights and delegate some or all of its obligations hereunderunder this Agreement to an affiliate; (ii) engage third parties to perform some or all of Bank’s obligations under this Agreement, such ▇▇▇▇▇▇ as nonfiduciary agent for including the Borrower shall maintain servicing and administration of Accounts; (iii) assign all or some of its rights hereunder to any person acquiring any or all Accounts after the termination or expiration of this Agreement, and (iv) assign all of its rights and delegate all of its obligations under this Agreement to a register on which it enters the name and address purchaser (or an affiliate of all participants in the Advances held by it and the principal amount of a purchaser) (and stated interest ona “Bank Purchaser”) of the Sales Finance business of GE Capital Corporation, [**Confidential portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating has been omitted pursuant to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to request for confidential treatment and has been filed separately with the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant RegisterCommission].
(diii) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing 21(a)(i) to the Lenderscontrary notwithstanding Retailer may, a copy without Bank’s consent, assign all of this Agreement its rights and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation delegate all of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender its obligations under this Agreement (x) to an affiliate, [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission].
(iv) No assignment under this Section 21(a) shall (x) relieve the assigning party of any stated interest thereon). The entries in obligation hereunder or (y) be effective unless and until the Register shall be conclusive assignee signs this Agreement (or documentation reasonably sufficient to bind it to the terms hereof) and binding assumes responsibility for all purposes, absent manifest error, and the Borrower, obligations attributable to the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of assigning party under this Agreement. The Register Further, each of Bank and Retailer, as the assigning party under Sections 21(a)(ii) and (iii), respectively, shall be available responsible to the non-assigning party for inspection the costs incurred by the Borrower non-assigning party relating to any necessary changes in hardware or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and software which are required as a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration result of such assignment or sale on assignment. Without limiting the Register (and each Noteforegoing, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to Agreement is intended for the Collateral Agent and the Borrower from time to time at the request exclusive benefit of the Collateral Agent parties hereto and their respective successors and permitted assigns, and shall not create any rights in or be enforceable by any other person whomsoever, whether as third party beneficiaries or otherwise. This Agreement shall be binding on, and enforceable against, the Borrower an updated version of Schedule 1 reflecting the then-current allocation successors and permitted assigns of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything respective parties. ** Confidential portions have been omitted pursuant to the contrary set forth herein or in any other Facility Documenta request for confidential treatment by Haverty Furniture Companies, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Inc. pursuant to Rule 144A 24B-2 under the Securities Exchange Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower1934.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Retailer Program Agreement (Haverty Furniture Companies Inc), Retailer Program Agreement (Haverty Furniture Companies Inc)
Assignability. (a) Each Lender may, with The rights and obligations of the parties under this Agreement and under any Advance shall not be assigned by any Borrower without the prior written consent of Administrative Agent. Subject to the Administrative foregoing, this Agreement and any Advance shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors and permitted assigns hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Each Lender, upon at least five (5) Business Days’ written notice to Borrower Representative and Calculation Agent and (provided that such written notice shall not be required for any assignment by the Borrower, Initial Lender to SPE Lending A Trust on the date hereof) may from time to time assign to an assignee all or a pro rata portion of its rights and obligations under this Agreement (including all or a portion and the other Facility Documents to any Affiliate of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each without consent of the Borrower’s and the Administrative Agent’s consent Borrowers, or to any other Person with prior written consent of Borrowers (such assignment (A) shall consent not to be unreasonably withheld or delayed; (provided provided, that a Lender may not make any no such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) consent shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) ), pursuant to an executed assignment and acceptance by such ▇▇▇▇▇▇ and assignee (“Assignment and Acceptance”), specifying the pro rata portion of such rights and obligations assigned. Administrative Agent and each Lender acknowledges and agrees that it shall be permittedconsidered reasonable for a Borrower to withhold its consent in connection with an assignment to a competitor of such Borrower or any of its Affiliates. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the pro rata portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of such assigning Lender hereunder, and (b) such assigning Lender shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Each such Assignment and Acceptance shall be delivered to Administrative Agent. Unless otherwise stated in the Assignment and Acceptance, Borrower Parties and Calculation Agent shall continue to take directions solely from Lender unless otherwise notified by Administrative Agent in writing. Administrative Agent may distribute to any prospective assignee any document or other information delivered to the applicable Lender by Borrower Parties.
(b) Each Lender, upon at least five (5) Business Days’ notice to Borrower Representative, may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants one or more Persons in all all, or in a portion pro rata portion, of such Lender’s its rights and obligations under this AgreementAgreement to any Person; provided provided, however, that (A) such participant is not a Disqualified Lender, (Bi) such Lender’s obligations under this Agreement shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) such Borrower, the Agents and the other Lenders Borrower Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant the other Facility Documents except as provided in Section 6; provided, that no such restrictions shall have agreed apply with respect to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) any sale to any Affiliate of such Lender or if an Event of Default has occurred and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide is continuing; and provided further that such Lender shall retain the sole right to enforce this Agreement act as agent for all purchasers, assignees and to approve any amendment, modification or waiver point of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment contact for Borrowers pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees agency provisions to be subject to the provisions agreed upon by such Lender, its intended purchasers and/or assignees and Borrowers. Each Lender that sells a participation shall, acting solely for this purpose as agent of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10Borrowers, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it each participant and the principal amount of (and stated each participant’s interest on) of the portion of the Advance which is the subject of the participation under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive and binding absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant RegisterAgreement.
(dc) The Administrative AgentEach Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 18, disclose to the assignee or participant or proposed assignee or participant, as the case may be, any information relating to a Borrower Party or any of its Subsidiaries or to any aspect of the Advances that has been furnished to such Lender by or on behalf of and acting solely for this purpose as the nonfiduciary agent a Borrower Party or any of the Borrowerits Subsidiaries; provided, shall maintain at its address specified in Section 13.02 that such assignee or participant agrees to hold such other address as the Administrative Agent shall designate in writing information subject to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes confidentiality provisions of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Offerpad Solutions Inc.), Loan and Security Agreement (Offerpad Solutions Inc.)
Assignability. (a) Each Lender The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by Seller without the prior written consent of B▇▇▇▇. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Buyer may, with the consent of the Administrative Agent and the Borrowerfrom time to time, assign to an assignee all or a portion of its rights and obligations under this Agreement and the Facility Documents with the prior written consent of Seller (including such consent not to be unreasonably delayed, conditioned or withheld) to any Person pursuant to an executed assignment and acceptance by B▇▇▇▇ and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned; provided, that, with respect to any assignment to an Affiliate of Buyer or made during the continuation of an Event of Default, no such consent from Seller shall be required. Buyer shall provide to Seller written notice of any such assignment; provided, that, the failure to give such notice shall not affect the validity of such assignment. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, Seller shall continue to take directions solely from Buyer unless otherwise notified by B▇▇▇▇ in writing. Buyer may distribute to any prospective assignee this Agreement, the Facility Documents and any document or other information delivered to Buyer by Seller.
(b) Buyer, upon written notice to Seller (provided, that, the failure to give such notice shall not affect the validity of any sale pursuant to this Section 21(b)), may, from time to time, sell participations to one or more Persons in all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s rights and the Administrative Agent’s consent obligations under this Agreement to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee Person with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of Seller (such consent not to be unreasonably delayed, conditioned or withheld); provided, that, with respect to any such sale to an Affiliate of Buyer or made during the Agents and the Lenders.
continuation of an Event of Default, no such consent from Seller shall be required; provided, further, that (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such LenderBuyer’s obligations under this Agreement shall remain unchanged, ; (Cii) such Lender Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (Diii) such Borrower, the Agents and the other Lenders Seller shall continue to deal solely and directly with such Lender Buyer in connection with such LenderBuyer’s rights and obligations under this Agreement and the other Facility Documents except as provided in Section 8; and (Eiv) each Participant Buyer shall have agreed act as agent for all purchasers, assignees and point of contact for Seller pursuant to agency provisions to be bound agreed upon by this Section 13.06(c)Buyer, Section 13.06(d), Section 13.06(e) its intended purchasers and/or assignees and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationSeller.
(iic) Subject to Section 32, Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 21, disclose to the assignee or participant or proposed assignee or participant, as the case may be, this Agreement, the Facility Documents and any document or other information relating to Seller or any of its Subsidiaries or to any aspect of the Transactions that has been furnished to Buyer by or on behalf of Seller or any of its Subsidiaries.
(d) In the event that any Lender sells participations in any Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubtAgreement, the Administrative Agent (parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed add agency provisions similar to those included in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or repurchase agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerfor similar syndicated repurchase facilities.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Master Repurchase Agreement and Securities Contract (Radian Group Inc), Master Repurchase Agreement and Securities Contract (Radian Group Inc)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (in each case not to be unreasonably withheld or delayed), assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided further that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a15.06(a) shall not be required if (x) an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.0115.01); and
(iii) or (y) no such assignment is required as shall be made to a result of any Change in Lawnatural person. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g15.03(g). Notwithstanding any other provision of this Section 13.0615.06, no assignment by any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its Affiliates obligations hereunder or substitute any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedsuch pledgee or grantee for such ▇▇▇▇▇▇ as a party hereto.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, of the Borrower, the Administrative Agent or the Swingline Lender sell participations to Participants one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c15.06(c) and Sections 15.09(b), Section 13.06(d), Section 13.06(e) 15.15 and Section 13.1715.19. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.09, 2.10, 2.11, and 13.03 15.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.09, 2.10, 2.11, or 13.03 15.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitmentsCommitments, loans Advances or its other obligations under any Facility Documentthis Agreement) to any Person except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitmentCommitment, loan Advance or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and Section 1.163-5(b) solely to the IRS. An Advance may be participated in whole or in part only by registration of such participation on the proposed United States Treasury RegulationsParticipant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Collateral Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 15.02 or such other address as the Administrative Collateral Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance in accordance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts15.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to (x) any Person unless (A) such Person shall have represented and agreed in writing that it is not both a Qualified Purchaser and a QIB at the time of such assignment or participation, (By) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretothe Borrower’s Affiliates.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Assignability. (a) Each Any Conduit Lender may, (i) with notice to the Borrower and the Servicer, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Conduit Lender’s sponsor or administrator bank (C) any Affiliate of such Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Conduit Lender and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any other Person not listed in clause (i) above; provided that the consent of the Borrower shall not be required if an Event of Termination has occurred and is continuing. Any Managing Agent may, with notice to the Borrower and the Servicer, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Lender or to any Affiliate of such Managing Agent or any Lender.
(b) Any Committed Lender may, with the consent of the Administrative Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and with the consent of the Managing Agent and for the BorrowerLender Group of which it is a member, assign to an assignee at any time all or a any portion of its rights and obligations under this Agreement hereunder and interests herein to any Person; provided, however, that the consent of the Borrower shall not be required in connection with any assignment by a Committed Lender (including all i) if an Event of Termination has occurred and is continuing or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:(ii) to any other Lender.
(c) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than $10,000,000, and
(xiii) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(d) At all times during which any Loan is outstanding, the Program Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Program Agent notified by the Program Agent to the other parties hereto) a register as provided herein (the “Register”). The Aggregate Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Principal Balance or any interest therein delivered to and accepted by the Program Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment transfer of the Aggregate Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Program Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of this Agreement. This Section 10.03(d) shall be construed so that the Aggregate Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the IRC, solely for the purposes of this Section 10.03, the Program Agent will act as an agent of the Borrower. The Register shall be available for inspection by any Lender to the Borrower or any of its Affiliates or Managing Agent at any Disqualified Institution (except if an Event of Default has occurred reasonable time and is continuing) shall be permittedfrom time to time upon reasonable prior notice.
(be) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior written consent of Program Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the Agents information contained therein in the Register and (iii) give prompt notice thereof to the LendersBorrower.
(if) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loan); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such the Borrower, the Agents Program Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Facility Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Facility Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10amendment, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by assignment pursuant to clause (a) of this Section 13.06 (subject the Borrower to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that Program Agent (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent relating to payments to the Participant) or delays any scheduled date for payment of such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event fees. The Borrower acknowledges and agrees that any Lender sells participations Lender’s source of funds may derive in any portion of part from its rights and obligations hereunderParticipants. Accordingly, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants references in the Advances held by it Sections 2.11 or 2.13 and the principal amount of (other terms and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy provisions of this Agreement and each signature page hereto the other Facility Documents to determinations, reserve and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders capital adequacy requirements, expenses, increased costs, reduced receipts and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and like as they pertain to the Lenders shall treat each Person whose name is recorded be deemed also to include those of its Participants; provided, however, that in the Register as a Lender hereunder for all purposes of this Agreement. The Register no event shall be available for inspection by the Borrower be liable to any Participant under Sections 2.11 or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may 2.13 for an amount in excess of that which would be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish payable to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual applicable Lender Maximum Funding Amountsunder such sections.
(eg) Notwithstanding anything to Neither the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in Borrower nor the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, Servicer may assign any of its Advances rights or its Individual Lender Maximum Funding Amount to obligations hereunder or any Person unless (A) such Person shall have represented interest herein without the prior written consent of the Program Agent and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowereach Managing Agent.
(fh) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Program Agent; provided provided, that no such pledge or grant of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Puget Sound Energy Inc), Loan and Servicing Agreement (Puget Energy Inc /Wa)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (in each case not to be unreasonably withheld or delayed), assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided further that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a16.06(a) shall not be required if (x) an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.0116.01);
(iii) no assignment shall be made to a natural person; and
(iv) no assignment shall be made to the Borrower or (y) such assignment is required as a result any of any Change in Lawits Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral AgentAgent and the Borrower) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g16.03(g) and (j). Notwithstanding any other provision of this Section 13.0616.06, no assignment by any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its Affiliates obligations hereunder or substitute any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedsuch pledgee or grantee for such Lender as a party hereto.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e16.06(c) and Section 13.17Sections 15.09(b) and 15.15 and (E) each Participant shall have a short term rating of at least “A-2/P2” by S&P and ▇▇▇▇▇’▇, respectively. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 16.06(f) with respect to any Participant. Sections 2.09, 2.10, 2.11, and 13.03 16.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.09, 2.10, 2.11, or 13.03 16.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitmentsCommitments, loans Loans or its other obligations under any Facility Documentthis Agreement) to any Person except to the extent that such disclosure is necessary to establish that such commitmentCommitment, loan Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) Regulations. An Advance may be participated in whole or in part only by registration of such participation on the proposed United States Treasury RegulationsParticipant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 16.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance in accordance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts16.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Assignability. (a) Each Lender mayThis Agreement may be assigned by UNIVERSITY, but is personal to LICENSEE and assignable by LICENSEE only with the written consent of the Administrative Agent and the Borrower, UNIVERSITY; provided however that LICENSEE may assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion without the written consent of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
UNIVERSITY to (i) each an Affiliate of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld LICENSEE or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such LenderLICENSEE’s rights and obligations under sale of all or substantially all of the business (whether structured as a merger, asset sale, exclusive license or otherwise) to which this Agreement relates (any such event, a “Change of Control”). LICENSEE agrees promptly to notify UNIVERSITY in writing of any assignment and/or Change of Control and (E) each Participant shall have agreed such assignee or transferee must agree in writing to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) the terms and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision conditions of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that LICENSEE wishes to (i) assign this Agreement for any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain reason other than assignment to an Affiliate (a register on which it enters the name and address of all participants “Non-Affiliate Assignment”) or (ii) in the Advances held by it and event of any Change of Control of LICENSEE, LICENSEE shall pay to UNIVERSITY a one-time payment on the principal first to occur of either (i) in the event of the signing of a Non-Affiliate Assignment, an amount of (and stated interest on) [***] within [***] after the signing of the portion of the Advance which is the subject of the participation such Non-Affiliate Assignment (the “Participant RegisterNon-Affiliate Assignment Payment”); provided that no Lender shall have any obligation to disclose all , or any portion (ii) in the event of the Participant Register closing of a Change of Control of LICENSEE, a one-time payment based on the Acquisition Price (including as determined below), within [***] after the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner closing of such participation for all purposes Change of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register Control (the “RegisterChange of Control Payment”) for ): An amount of: When the recordation Acquisition Price of LICENSEE is: [***] [***] [***] [***] [***] [***] “Acquisition Price” shall be calculated by LICENSEE prior to the closing of the names and addresses Change of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon)Control, which “Acquisition Price” shall equal [***]. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsAny [***].
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: License Agreement (Lexeo Therapeutics, Inc.), License Agreement (Lexeo Therapeutics, Inc.)
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent Borrower (such consent not to be unreasonably withheld, conditioned or delayed) and the BorrowerAdministrative Agent, assign to an assignee any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have objected in writing within five (5) Business Days of receipt of any such request for consent; provided, further, that:
(i) each of neither the Borrower’s and nor the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is (A) a Permitted Assignee with respect to such assignor; andLender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (x) an Event of Default shall have occurred and be continuing; provided that in no event shall an assignment be made to a Competitor without the Borrower’s prior written consent unless an Event of Default shall have occurred and be continuing; and
(and not been waived by iii) notwithstanding anything herein to the Lenders in accordance contrary, each Lender may make an assignment to any Person (other than a Competitor) with Section 13.01) notice to, but without the consent of, the Borrower or (y) the Administrative Agent if such assignment is required as Lender makes a result reasonable determination that its ownership of any Change in of its rights or obligations hereunder is prohibited by Applicable Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of Citibank, N.A.). Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 13.03(g12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement, and to the extent of the interest assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender may be made to the Borrower Borrower, the Collateral Manager, the Equityholder or any of its their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Disqualified Institution Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (except if an Event of Default has occurred and is continuing) shall be permittedy).
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(i) Any Lender may, without the consent of, of (but with notice to, ) the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided . The Borrower agrees that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant shall be entitled to the benefits of Sections 2.09 and 12.03 (subject to the requirements and limitations therein, including the requirements under Section 12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Section; provided that such Participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 2.09 or 12.03, 2.11with respect to any participation, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.20 with respect to any Participant.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no . An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other rights and obligations under any Facility Documenthereunder) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is rights and obligations are in registered form under Section 5f.103-1(c) 1 of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and Agreement, each signature page hereto and hereto, each Assignment and Acceptance delivered to and accepted by it it, and a register (the “Register”) for the recordation of the names names, addresses and addresses wiring instructions of the Lenders and the aggregate outstanding principal amount of the outstanding Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of this Agreementthe Facility Documents. The Register shall be available for inspection by the Borrower Borrower, the Collateral Manager, the Collateral Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each NoteNote with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts12.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, Document and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3), and (7) of Rule 501(a) under the Securities Act (an “Accredited Investor”) and a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender severally represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerPurchaser.
(f) Notwithstanding any other provision of this Section 13.0612.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Credit and Security Agreement (Apollo Debt Solutions BDC), Credit and Security Agreement (Apollo Debt Solutions BDC)
Assignability. (a) Each Lender mayThe rights and obligations of the Seller Parties under this Agreement and the other Transaction Documents and under any Transaction shall not be assigned by the Seller Parties without the prior written consent of Buyer, with which consent may be granted or withheld in Buyer’s sole discretion.
(b) Buyer shall not sell, assign or otherwise transfer any interest or obligation under this Agreement and the other Transaction Documents and/or under any Transaction without the prior written consent of the Administrative Agent Sellers, which consent shall not be unreasonably withheld, conditioned or delayed (a “Restricted Transfer”); provided, however, that in no event shall any such assignment, sale or transfer be to any of the parties listed on Exhibit X attached hereto or their respective Affiliates (collectively, “Prohibited Transferees”) without the prior written consent of the Sellers. Buyer may sell participations or synthetic interests in any interest or obligation under this Agreement and the Borrower, assign other Transaction Documents and/or under any Transaction to an assignee one or more Persons in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itas Buyer; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06however, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified LenderPerson’s obligations under this Agreement and the Transaction Documents shall remain unchanged, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender Person shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (DC) such Borrower, the Agents and the other Lenders Sellers shall continue to deal solely and directly with such Lender Buyer in connection with such LenderBuyer’s rights and obligations under this Agreement and the other Transaction Documents. For the avoidance of doubt, the transfer restrictions described above regarding Restricted Transfers shall not apply, and the interests and obligations shall be freely transferable (EA) each Participant following the occurrence of a Regulatory Event (a “Regulatory Transfer”), (B) following the occurrence and continuation of an Event of Default or (C) to any Affiliate of Buyer (clauses (B) and (C) together, an “Unrestricted Transfer”). Buyer shall have agreed notify the Seller at least twenty (20) Business Days prior to be bound by any Restricted Transfer or Regulatory Transfer, and at least five (5) Business Days prior to an Unrestricted Transfer. Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 13.06(c18(b), Section 13.06(d)disclose to the assignee or participant or proposed assignee or participant, Section 13.06(e) and Section 13.17. Any agreement pursuant as the case may be, any information relating to which a Lender sells such a participation shall provide any Seller Party or to any aspect of the transactions contemplated by the Transaction Documents that such Lender shall retain the sole right has been furnished to enforce this Agreement and to approve any amendment, modification Buyer by or waiver on behalf of any provision of this AgreementSeller Party; provided that such agreement may provide that assignee or participant agrees to hold such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (information subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the confidentiality provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 Agreement and (B) no Participant shall be entitled any confidentiality provisions applicable to any amount under Section 2.10, 2.11, or 13.03 which is greater than of the amount the documents related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationthereto.
(iic) In Buyer shall, acting for this purpose as a non-fiduciary agent of Sellers (the event that any Lender sells participations in any portion of its rights and obligations hereunder“Registrar”), such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register record of ownership (the “Register”) on which it enters is entered the name and address of all participants assignees of Buyer and each such assignee’s interest in the Advances held by it rights and obligations under this Agreement and the principal amount of other Transaction Documents. All assignments pursuant to Section 18 hereof shall be recorded on the Register. This provision is intended to be interpreted so that the indebtedness (and stated interest onfor federal income tax purposes, as set forth in Section 22(e)) evidenced by the Transaction Documents is treated as being in registered form in accordance with Section 5f.103-1(c) of the portion Treasury Regulations. The Register shall be available for inspection by Sellers at any reasonable time and from time to time upon reasonable prior notice. The entries in the Register shall be conclusive absent manifest error, and Buyer and Sellers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer hereunder for all purposes of this Agreement and any other Transaction Document notwithstanding notice to the Advance contrary, subject to the provisions of this Section 18. Buyer may, at any time, designate any other Person, including a Seller, to be the successor Registrar.
(d) If Buyer sells a participation, Buyer shall, acting for this purpose as a non-fiduciary agent of Sellers, maintain a register on which is entered the subject name and address of each participant and such participant’s interest in the participation rights and obligations under this Agreement and the other Transaction Documents (the “Participant Register”)) and no participation shall be effective until recorded on the Participant Register; provided that no Lender that, Buyer shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitments, loans rights or its other obligations under any Facility Documentthis Agreement and the other Transaction Documents) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan rights or other obligation is obligations are in registered form under in accordance with Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a each Participant Register shall be conclusive absent manifest error, and such Lender Buyer shall treat each Person whose name is recorded in such Participant Register as the owner of such participation the related rights and obligations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing subject to the Lenders, a copy provisions of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts18.
(e) Notwithstanding anything Subject to the contrary set forth herein or in any other Facility Documentforegoing, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) the other Transaction Documents and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser any Transactions shall be binding upon and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run inure to the benefit of the parties and be enforceable by their respective successors and assigns. Nothing in this Agreement or the Borrower.
(f) Notwithstanding other Transaction Documents, express or implied, shall give to any Person, other provision of this Section 13.06than the parties to the Transaction Documents and their respective successors and permitted assigns, any Lender may at any time pledge or grant a security interest in all benefit or any portion of its rights (including rights to payment of principal and interest) legal or equitable right, power, remedy or claim under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoTransaction Documents.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Sutherland Asset Management Corp), Master Repurchase Agreement (Sutherland Asset Management Corp)
Assignability. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of Cardinal Health and CareFusion, except that each Party may:
(a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion to any of its outstanding Advances Subsidiaries, provided, that no such assignment shall release Cardinal Health or interests therein owned by itCareFusion, together as the case may be, from any liability or obligation under this Agreement;
(b) in connection with ratable portions the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquiror that is not a competitor of the Provider, assign to the acquiror of such Subsidiary or business its Individual Lender Maximum Funding Amount); rights and obligations as a Recipient with respect to the Services provided that:
to such divested Subsidiary or business under this Agreement, provided, that (i) no such assignment shall release Cardinal Health or CareFusion, as the case may be, from any liability or obligation under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, and (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Annexes and Schedules to this Agreement, that may be necessary or appropriate in order to assign such Services; and
(c) in connection with the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquiror that is a competitor of the Provider, assign to the acquiror of such Subsidiary or business its rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement, provided, that (i) no such assignment shall release Cardinal Health or CareFusion, as the case may be, from any liability or obligation under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Annexes and Schedules to this Agreement, that may be necessary or appropriate in order to ensure that such assignment will not (x) materially and adversely affect the businesses and operations of each of the Borrower’s Parties and their respective Affiliates or (y) create a competitive disadvantage for the Administrative Agent’s consent Provider with respect to an acquiror that is a competitor, and (iv) no Party shall be obligated to provide any such assignment (A) shall not be unreasonably withheld or delayed; (provided assigned Services to an acquiror that is a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required competitor if the assignee is provision of such assigned Services to such acquiror would disrupt the operation of such Party’s businesses or create a Permitted Assignee competitive disadvantage for such Party with respect to such assignoracquiror; and
(ii) provided, that, notwithstanding anything to the Borrower’s consent to any such assignment pursuant to contrary in this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.0611.13, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) Party shall be permitted.
(b) Borrower may not entitled to assign its any rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible that relate to Services provided to the other parties hereto for the performance former Medical Products Technologies business of such obligationsCardinal Health (including respiratory, (D) such Borrowerinfection prevention, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17▇. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”On-Site businesses); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Transition Services Agreement, Transition Services Agreement (CareFusion Corp)
Assignability. (a) Each No Borrower shall have the right to assign this Credit Agreement or any interest therein except with the prior written consent of the Lenders.
(b) Notwithstanding subsection (c) of this Section 14.6, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender's Loans and/or Commitments hereunder to any Pre-Approved Assignee. Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an affiliate of such Lender except to the extent such transfer would result in increased costs to the Borrowers.
(c) Any Lender may, in the ordinary course of its lending business and in accordance with applicable law, at any time, assign to any Pre-Approved Assignee and, with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, so long as no Event of Default has occurred and is continuing, with the Borrowerconsent of the Company (such consent not to be unreasonably withheld or delayed), but without the consent of any other Lender, assign to an assignee one or more other Eligible Assignees all or a portion of its rights and obligations under this Credit Agreement (including all or a portion of its outstanding Advances or interests therein owned by itand the Notes; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
however, that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a copy processing and recordation fee of $3,500 to be paid by the assignee, (ii) no such assignment shall be for less than $5,000,000 or, if less, the entire remaining Commitments of such Lender and (iii) if such assignee is a Foreign Lender, all of the requirements of Section 2.7(b) shall have been satisfied as a condition to such assignment; and provided, further, that any assignment to a Pre-Approved Assignee shall not be subject to the Collateral Agentminimum assignment amounts specified herein. Upon such execution and delivery of the Assignment and Acceptance to the Administrative Agent and if applicable, the Company, from and after the date specified as the effective date in the Assignment and Acceptance (the "Acceptance Date"), (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 14.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in covering all or a the remaining portion of such an assigning Lender’s 's rights and obligations under this Credit Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed cease to be bound by this Section 13.06(ca party hereto), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or the performance or observance by the Borrowers of any of their obligations under this Credit Agreement or any other instrument or document furnished pursuant hereto, (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the financial statements referred to in Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Credit Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender.
(e) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, Agent shall maintain at its address specified referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, 14.5 a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding Commitments of, and principal amount of the outstanding Advances maintained by Loans owing to, each Lender under this Agreement from time to time (and any stated interest thereonthe "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Agents Agent and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the Borrower Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together with the Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers. Within five (5) Business Days after its receipt of such notice, the Borrowers shall execute and deliver to the Agent in exchange for the surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to the Company) a new Note or Notes to the order of the assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Note or Notes to the order of the assigning Lender in an amount equal to the Commitment or Commitments retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the Closing Date and shall otherwise be in substantially the form of the Note or Notes subject to such assignments.
(g) Each Lender may sell participations (without the consent of the Agent, the Borrowers or any other provision of this Section 13.06, any Lender may at any time pledge Lender) to one or grant a security interest more parties in or to all or any a portion of its rights and obligations under this Credit Agreement (including including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided that (i) such Lender's obligations under this Credit Agreement (including, without limitation, its Commitments to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) the Borrowers, the Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to payment approve any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date fixed for the payments of any installment of fees or principal or interest of any Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal and interestof the Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) under except as otherwise expressly provided in this Agreement Credit Agreement, reduce the interest rate applicable to secure the Loans or Letter of Credit reimbursement obligations of in which such Lenderparticipant is participating, including or (D) except as otherwise expressly provided in this Credit Agreement, reduce any pledge or security interest granted to a Federal Reserve BankFees payable hereunder.
(h) Each Lender agrees that, without notice to or the prior written consent of the Borrower Borrowers and the Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Note or other Obligation under the Administrative Agent; provided that no such pledge securities laws of the United States of America or grant of a security interest shall release any jurisdiction.
(i) Subject to Section 14.7, in connection with the efforts of any Lender to assign its rights or obligations or to participate interests, such Lender from may disclose any of information in its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretopossession regarding the Borrowers.
Appears in 2 contracts
Sources: Credit Agreement (Nationsrent Companies Inc), Credit Agreement (Nationsrent Companies Inc)
Assignability. (a) Each Any Conduit Lender may (i) with notice to the Borrower and the Servicer, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Conduit ▇▇▇▇▇▇’s sponsor or administrator bank if the Commercial Paper of such commercial paper conduit have short-term ratings from S&P and ▇▇▇▇▇’▇ that are equivalent to or higher than the short-term ratings by S&P and ▇▇▇▇▇’▇ of the Commercial Paper of such Conduit Lender, (C) any Affiliate of such Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Conduit Lender and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld or delayed) and the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any other Person not listed in clause (i) above. Any Managing Agent may, with notice to the Borrower, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Affiliate of such Managing Agent.
(b) Any Committed Lender may, with the consent of the Administrative Agent and and, if no Event of Default is continuing, the Borrower, Borrower (such consent not to be unreasonably withheld or delayed) assign to an assignee at any time all or a any portion of its rights and obligations under this Agreement hereunder and interests herein to any Person; provided, however, that notwithstanding the foregoing, no consent of the Borrower shall be required for any assignment is to a Lender or an Affiliate of a Lender other than a Conduit Lender.
(including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:c) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than $10,000,000, and
(xiii) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500.
(d) Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The Aggregate Loan Principal Balance (including stated interest) and any interests therein, and any Assignments and Acceptances of the Aggregate Loan Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment transfer of the Aggregate Loan Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Administrative Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of this Agreement. This Section 10.03(d) shall be construed so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code, solely for the purposes of this Section 10.03, the Administrative Agent will act as an agent of the Borrower. The Register shall be available for inspection by any Lender to the Borrower or any of its Affiliates or Managing Agent at any Disqualified Institution (except if an Event of Default has occurred reasonable time and is continuing) shall be permittedfrom time to time upon reasonable prior notice.
(be) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior written consent of Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the Agents information contained therein in the Register and (iii) give prompt notice thereof to the LendersBorrower.
(if) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loan); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such the Borrower, the Agents Administrative Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Facility Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Facility Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10amendment, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by assignment pursuant to clause (a) of this Section 13.06 (subject the Borrower to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that Administrative Agent (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent relating to payments to the Participant) or delays any scheduled date for payment of such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event fees. The Borrower acknowledges and agrees that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ ▇’s source of funds may derive in part from its Participants. Accordingly, references in Sections 2.09 or 2.10 and the other terms and provisions of this Agreement and the other Facility Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as nonfiduciary agent for they pertain to the Lenders shall be deemed also to include those of its Participants; provided, however, that in no event shall the Borrower shall be liable to any Participant under Sections 2.09 or 2.10 for an amount in excess of that which would be payable to the applicable Lender under such sections. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of all participants each Participant and the aggregate principal balance (including stated interest) of each Participant’s interest in the Advances held by it and Loans or other obligations under the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation Facility Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any other information relating to a the Participant’s interest in any commitments, loans Commitments or its other obligations under any Facility DocumentLoans) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan Commitment or other obligation Loan is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dg) The Administrative Agent, on behalf Borrower may not assign any of and acting solely for this purpose as its rights or obligations hereunder or any interest herein without the nonfiduciary agent prior written consent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to and all the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsManaging Agents.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(fh) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided provided, that no such pledge or grant of a security interest shall (x) release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretohereto or (y) create any additional, or modify any existing, obligations of the Seller, the Borrower or the Servicer under this Agreement or any other Facility Document.
Appears in 2 contracts
Sources: Receivables Loan Agreement, Sale and Contribution Agreement, Servicing Agreement, Custody Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement, Sale and Contribution Agreement, Master Transfer Agreement, Custody Agreement (Hilton Grand Vacations Inc.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders Except in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (connection with a copy Change of Control, which is subject to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required Section 12.6(a)-(d), neither this Agreement, nor any right or obligation hereunder, may be assigned by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein Xtent without the prior written consent of the Agents and the Lenders.
(i) Any Lender mayOccam. In addition, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender except in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound a Change of Control, any attempted transfer by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent Xtent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject technology related to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to Occam Items shall be subject to the provisions prior written approval of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) Occam. Unless otherwise expressly consented to by Occam, no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held assignment by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity Xtent will relieve Xtent of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) agreement, document or instrument executed and delivered pursuant to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is this Agreement. Any purported assignment in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes violation of this Agreement notwithstanding any notice will be null and void and shall give Occam the option to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of immediately terminate this Agreement. The Register Occam shall be available for inspection by have the Borrower or any Lender at any reasonable time and from time right to time upon reasonable prior noticeassign this Agreement in its discretion. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish Subject to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Documentforegoing, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run inure to the benefit of and be enforceable by binding upon the BorrowerParties and their respective successors and permitted assigns.
(fa) Notwithstanding any other provision In the event Occam enters into an agreement for a Change of Control or grants another entity an option or right to enter into an agreement for a Change of Control, the acquiring or surviving entity shall be bound by the terms and conditions of this Agreement.
(b) In the event Xtent enters into an agreement for a Change of Control or grants another entity an option or right to enter into an agreement for a Change of Control, the following shall apply:
(i) Such acquiring or surviving entity shall have the right to buy-back the distribution rights granted to Occam under Section 13.062.2 for the Pacific Rim Countries. In the event an acquiring or surviving entity of Xtent exercises its right to buy back distribution rights for the Pacific Rim Countries, [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [*], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
(ii) If at the time of such Change of Control the acquiring entity markets a Stent for coronary or peripheral applications incorporating Rapamycin or an analog thereof, then Occam's obligations under Section 3.8 following a Supply Failure shall terminate except for the obligation to transfer to such entity tooling and fixtures developed specifically for Xtent's Stent; provided, however, that in the event of such a Change of Control, if a Supply Failure occurs as set forth in Section 3.8 above, Occam shall supply to the acquiring or surviving entity its requirements of Occam's Drug/Polymer Composite Formulation, Biolimus A9, Occam's Polymer Coating, and Occam's Lubricious Coating for purposes of incorporating such items with Xtent's Stents and Xtent Stent Systems (whether in its own facility or through a third party in another facility); and further provided that the license set forth in Section 3.8 to perform or have performed the Coating Services shall remain in force but only for the limited purpose of allowing such entity to incorporate Occam's Drug/Polymer Composite Formulation, Biolimus A9, Occam's Polymer Coating, and Occam's Lubricious Coating with Xtent's Stents and Xtent Stent Systems without the use of Occam's Confidential Information (including the Licensed Know-How) pertaining to the Occam Items. All licenses under ARTICLE II shall remain in force to allow such acquiring entity to import, export, use, sell, and offer for sale Xtent's Stents and Xtent Stent Systems incorporating any Lender of the Occam Items.
(iii) In advance of any Change of Control, Xtent shall limit disclosure of Occam's Confidential Information to only that information necessary for obtaining and maintaining regulatory approvals for (as set forth in ARTICLE V), and for marketing or selling Xtent's Stents or Xtent Stent Systems incorporating any of the Occam Items. If Xtent reasonably believes that a change of control may occur, Xtent shall promptly notify Occam and Xtent shall promptly return to Occam all of Occam's Confidential Information as may be requested in writing by Occam, except that which is necessary for the foregoing.
(c) In the event Xtent enters into an agreement for a Change of Control, or grants another entity an option or right to enter into an agreement for a Change of Control, Xtent or the surviving entity-shall have the right, but not the obligation, to either (i) terminate this Agreement and all rights hereunder upon thirty (30) days written notice to Xtent; or (ii) terminate the exclusivity obligations under Section 2.3(b).
(d) For purposes of this Agreement, "Change of Control" means a transaction or a series of related transactions in which (i) one or more related parties who did not previously own at any time pledge or grant least a security fifty percent (50%) interest in a Party to this Agreement obtain at least a fifty percent (50%) interest in such Party, or (ii) a third party acquires all or substantially all of the assets to which this Agreement relates, or (iii) a Party acquires, by merger, acquisition of assets or otherwise, all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations another legal entity such that either the assets or market value of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent Party after the close of such transaction are greater than one hundred thirty-three percent (133%) of the Borrower assets or market value of such Party prior to such transaction. The effective date of such a Change of Control shall be the Administrative Agent; provided that no such pledge or grant date of a security interest shall release such Lender from the first transaction in which any of its obligations hereunder the foregoing events occurs or substitute in which a Party or third party acquires an option or right to cause any such pledgee or grantee for such Lender as a party heretoof the foregoing events to occur.
Appears in 2 contracts
Sources: License Agreement (Xtent Inc), License Agreement (Xtent Inc)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsCommitments.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Assignability. (a) Each Lender may, with Party agrees that the consent entirety of the Administrative Agent and the Borrowerother Party’s unperformed rights, assign to an assignee all or a portion of its rights duties, powers, benefits and obligations under this Agreement are assignable to a commonly owned affiliate, provided that Party agrees to accept such assignment and assume all such obligations hereunder. In addition, Buyer recognizes that Seller may assign its rights hereunder to a third party upon Seller providing prior written notice to Buyer, and that Buyer may assign its rights hereunder to a third party only upon obtaining the prior written consent of Seller and the Collateral Agent (as defined herein). Notwithstanding anything to the contrary herein , Seller (or any of its trustees or successors) shall have the right, without any notice to Buyer or any of its affiliates, to freely and without limitation, assign this Agreement to any person or entity, including, without limitation, the to ▇▇▇▇▇ Fargo Bank, National Association, as collateral agent for the lenders (including all or a portion any successor thereto, the “Collateral Agent”) under the Third Amended and Restated Credit Agreement, dated as of its outstanding Advances or interests therein owned by itFebruary 13, together with ratable portions 2008, among EMHC, Seller, certain other subsidiaries of its Individual Lender Maximum Funding AmountEMHC, and the financial institutions party thereto (as amended, supplemented and otherwise modified from time to time, the “Credit Agreement”); provided that:
. Each of Seller and Purchaser agrees and acknowledges that (i) each this Agreement constitutes an “executory contract” as such term is used in Title 11 of the Borrower’s United States Code (as amended, the “Bankruptcy Code”), is not a financial accommodations contract for purposes of the Bankruptcy Code and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such is capable of both assumption and assignment pursuant to this clause (i)(A) to a Disqualified Institution) section 365 of the Bankruptcy Code and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to rights of Seller under this Section 13.06(aAgreement may be exercised (without the necessity of assumption) shall not be required if by Seller (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates trustees or successors) under the Bankruptcy Code and any applicable provisions of bankruptcy or non-bankruptcy law or by an unrelated third party, provided, however, that in the event the trustee fails to honor this Agreement or does not enter into an agreement to assign the Stations to a third party, whereby the Stations remain with the Licensee, the Initial Payment, and any additional payments on the Purchase Price, shall be returned to Buyer. Purchaser agrees that neither it nor any of its affiliates shall, directly or indirectly, (i) object to, delay, or take any other action to interfere, directly or indirectly, in any respect of the exercise of any rights or powers hereunder and/or the assumption and/or assignment of this Agreement pursuant to any provision of the Bankruptcy Code or any Disqualified Institution other provision or principle of bankruptcy or non-bankruptcy law, or (except if an Event ii) encourage any person or entity to do any of Default has occurred and is continuing) shall be permittedthe foregoing.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided Buyer hereby acknowledges that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender Seller will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure ▇▇▇▇▇ Fargo Bank, National Association, as collateral agent for the lenders (including any successor thereto, the "Collateral Agent") under the Third Amended and Restated Credit Agreement, dated as of February 13, 2008, among Equity Media Holdings Corporation, a Delaware corporation (“EMHC”), Seller, certain other subsidiaries of EMHC, and the financial institutions party thereto (as amended, supplemented and otherwise modified from time to time, the "Credit Agreement"), and Buyer hereby consents to the granting of such security interest. Buyer further agrees that, following such grant, (x) Buyer shall execute and deliver any and all instruments, certificates and documents, and take any and all actions, as the Seller or the Collateral Agent may reasonably request from time to time to ensure that the Collateral Agent has and maintains a first priority security interest in the rights of the Seller under this Agreement and (y) the Collateral Agent shall have the right, both prior to and following any default under the Credit Agreement and without any further action by any other party hereto, to exercise the rights of the Seller under this Agreement and to enforce the obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoBuyer hereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Equity Media Holdings CORP), Asset Purchase Agreement (Equity Media Holdings CORP)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (in each case not to be unreasonably withheld or delayed), assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided further that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a15.06(a) shall not be required if (x) an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.0115.01); and
(iii) or (y) no such assignment is required as shall be made to a result of any Change in Lawnatural person. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g15.03(g). Notwithstanding any other provision of this Section 13.0615.06, no assignment by any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its Affiliates obligations hereunder or substitute any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedsuch pledgee or grantee for such Lender as a party hereto.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, of the Borrower, the Administrative Agent or the Swingline Lender sell participations to Participants one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c15.06(c) and Sections 15.09(b), Section 13.06(d), Section 13.06(e) 15.15 and Section 13.1715.19. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.09, 2.10, 2.11, and 13.03 15.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.09, 2.10, 2.11, or 13.03 15.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitmentsCommitments, loans Advances or its other obligations under any Facility Documentthis Agreement) to any Person except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitmentCommitment, loan Advance or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and Section 1.163-5(b) solely to the IRS. An Advance may be participated in whole or in part only by registration of such participation on the proposed United States Treasury RegulationsParticipant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Collateral Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 15.02 or such other address as the Administrative Collateral Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance in accordance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts15.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to (x) any Person unless (A) such Person shall have represented and agreed in writing that it is not both a Qualified Purchaser and a QIB at the time of such assignment or participation, (By) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretothe Borrower’s Affiliates.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (in each case not to be unreasonably withheld or delayed), assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided further that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a11.06(a) shall not be required if (x) an Event of Default shall have occurred and is continuing (and has not been waived by the Lenders in accordance with Section 13.0111.01).
(b) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g11.03(g). For the avoidance of doubt, the parties hereto acknowledge and agree that any Conduit Lender may assign its rights and obligations hereunder and under the Advances to any Program Support Provider or Conduit Assignee (and any such Program Support Provider or Conduit Assignee may assign its rights and obligations hereunder to any Conduit Lender hereunder), in each case, without the consent of the Borrower, the Administrative Agent or any other Person. Notwithstanding any other provision of this Section 13.0611.06, no assignment by any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank and, in the case of a Conduit Lender, to its program collateral agent or trustee, in each case, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its Affiliates obligations hereunder or substitute any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedsuch pledgee or grantee for such Lender as a party hereto.
(bc) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Majority Lenders.
(i) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c11.06(c) and Sections 11.09(b), Section 13.06(d), Section 13.06(e) 11.15 and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment11.19. Sections 2.10, 2.11, 2.09 and 13.03 11.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, 2.09 or 13.03 11.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount payment results from a Change change in Applicable Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants Participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitmentsCommitments, loans Advance or its other obligations under any Facility Documentthis Agreement) to any Person except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitmentCommitment, loan Advance or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and Section 1.163-5(b) solely to the IRS. An Advance may be participated in whole or in part only by registration of such participation on the proposed United States Treasury RegulationsParticipant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(de) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 11.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). No assignment shall be effective unless it has been recorded in the Register as provided in this Section 11.06(e). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Administrative Agent and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender (in respect of such Lender’s Advances or Commitments only) at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance in accordance with this Section 13.0611.06. The Administrative Agent This Section shall update be construed so that the Advances are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and furnish to the Collateral Agent and the Borrower from time to time at the request 881(c)(2) of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsCode and any related regulations (and any successor provisions).
(ef) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, Borrower (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Compass, Inc.), Revolving Credit and Security Agreement (Compass, Inc.)
Assignability. (a) Each Lender mayExcept as set forth in any Other Ancillary Agreement, with this Agreement and each Other Ancillary Agreement shall be binding upon and inure to the benefit of the Parties hereto and thereto, respectively, and their respective successors and assigns; provided, however, that except as contemplated in this Section 6.6 or as specifically provided in any Other Ancillary Agreement, no Party hereto or thereto may assign its respective rights or delegate its respective obligations under this Agreement or any Other Ancillary Agreement without the express prior written consent of the Administrative Agent other parties hereto or thereto.
(b) In the event IAC desires to effect a spin-off, split-off or similar transaction (however effected) in which the equity interests of a Subsidiary of IAC holding IAC’s interest in NewCo are distributed or otherwise transferred, directly or indirectly, to the holders of one or more classes of IAC’s capital stock, then, upon IAC’s written request, NewCo, IAC and such Subsidiary of IAC shall enter into an amendment to this Agreement to effect (i) the Borrower, assign to an assignee all or a portion assignment by IAC of its rights hereunder to such Subsidiary of IAC and (ii) the acceptance of such rights and assumption of IAC’s obligations hereunder by such Subsidiary of IAC (in each case of clauses (i) and (ii) effective prior to or substantially concurrently with the consummation of such transaction), and (iii) the acknowledgement by NewCo that IAC shall thereafter have no liability hereunder (except for any liability arising from any breach by IAC or relating to any actions or events occurring, in each case, on or prior to the date of the spin-off, split-off or similar transaction).
(c) In the event (i) IAC desires to sell or transfer twenty percent (20%) or more of IAC’s Equity Interest during the Initial Governance Period to an unaffiliated third party or (ii) IAC determines to distribute its equity interest in NewCo to IAC’s stockholders and as a result, to IAC’s knowledge, a Person will hold twenty percent (20%) or more of the outstanding equity interests in NewCo, as a condition to any such sale, transfer or distribution, the party acquiring the twenty percent (20%) or greater equity interest described in clause (i) or (ii), as applicable, must agree in writing to assume IAC’s obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each unless the transaction will result in the acquiring party acquiring 100% of the Borrowercapital stock of NewCo). In the event IAC desires to sell or transfer any of IAC’s and Equity Interest during the Administrative AgentInitial Governance Period to an Affiliate of IAC (other than by way of a distribution to all of IAC’s consent stockholders), as a condition to any such assignment (A) shall not be unreasonably withheld sale or delayed; (provided that a Lender may not make any transfer, such assignment pursuant Affiliate must agree in writing to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lenderassume IAC’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to unless the other parties hereto for transaction will result in the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent acquiring Affiliate acquiring 100% of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) capital stock of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(gNewCo)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Investor Rights Agreement (ANGI Homeservices Inc.), Merger Agreement (Iac/Interactivecorp)
Assignability. (a) Borrower shall not have the right to assign this Agreement or any interest therein except with the prior written consent of Administrative Agent and all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower.
(c) Each Lender may, with the consent of Administrative Agent and, so long as no Event of Default is then continuing, Borrower, which consents shall not be unreasonably withheld, but without the consent of any other Lender, assign to one or more banks or other financial institutions all or a portion of its rights and obligations under this Agreement; provided, that (i) for each such assignment, the parties thereto shall execute and deliver to Administrative Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance Agreement in the form attached hereto as Exhibit D (the “Assignment and Acceptance”), and a processing and recordation fee of Three Thousand Five Hundred and No/100 Dollars ($3,500.00) to be paid by the assignee, and (ii) no such assignment shall be for less than Five Million and No/100 Dollars ($5,000,000.00) (or all of such Lender’s remaining Loans and Loan Commitments). Upon such execution and delivery of the Assignment and Acceptance to Administrative Agent, from and after the date specified as the effective date in the Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 23 of the Agreement which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(d) By executing and delivering an Assignment and Acceptance Agreement in the form of Exhibit D hereto (an “Assignment and Acceptance”), the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the Other Agreements, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any other Obligor or the performance or observance by Borrower or any other Obligor of its obligations under this Agreement, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 9 of the Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such assignee appoints and authorizes Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(e) Administrative Agent shall, maintain at its address referred to in Section 24 of the Agreement a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of Lenders and the Revolving Loan Commitments and Term Loan Commitments of, and principal amount of the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by Borrower, assign Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, (iii) give notice thereof to Administrative Agent on the date of receipt and (iv) give prompt notice thereof to Borrower. Within five (5) Business Days after its receipt of such notice, Borrower shall execute and deliver to Administrative Agent in exchange for the surrendered promissory note or notes, a new promissory note or notes to the order of the assignee in an amount equal to the maximum amount of Loans such assignee may at any time make under the terms of this Agreement and, if the assigning Lender has retained a portion of the Loans, a new promissory note or notes to the order of the assigning Lender in an amount equal to the maximum amount of Loans such assigning Lender may at any time make under the terms of this Agreement. Such new promissory note or notes shall re-evidence the indebtedness outstanding under the old promissory note or notes and shall be in the aggregate principal amount of such surrendered promissory note or notes, shall be dated of even date herewith and shall otherwise be in substantially the form of the promissory note or notes subject to such assignment.
(g) Each Lender may sell participations (without the consent of Administrative Agent, Borrower or any other Lender) to one or more parties, in or to all (or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its outstanding Advances Revolving Loan Commitment, or interests therein owned by the Loans owing to it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
provided, that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Diii) such Borrower, the Agents Administrative Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (iv) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to approve any amendment or waiver of this Agreement and (Ev) each Participant any such participant shall have agreed agree to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations confidentiality provisions set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation28 hereof.
(iih) In Each Lender agrees that, without the event that prior written consent of Borrower and Administrative Agent, it will not make any Lender sells participations assignment hereunder in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all manner or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to circumstances that would require registration or qualification of, or filings in respect of, any Person except to the extent that such disclosure is necessary to establish that such commitment, loan Loan or other obligation is in registered form Liabilities under Section 5f.103-1(c) the securities laws of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner America or of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Registerjurisdiction.
(di) The Administrative Agent, on behalf In connection with the efforts of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at to assign its rights or obligations or to participate interests, such Lender may disclose any reasonable time and from time information in its possession regarding Borrower so long as such potential assignee or participant agrees to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this confidentiality provisions of Section 13.06(e), (C) a copy of 28 hereof prior to receiving any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerinformation.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Cobra Electronics Corp), Loan and Security Agreement (Cobra Electronics Corp)
Assignability. (a) Borrower shall not have the right to assign this Agreement or any interest therein except with the prior written consent of Agent and all Lenders.
(b) Any Lender may make, carry or transfer Revolving Loans at, to or for the account of, any of its branch offices or the office of an affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower (including, without limitation, under Section 4 of this Agreement).
(c) Each Lender may, with the consent of the Administrative Agent and Borrower (provided, that Borrower’s consent (i) shall not be unreasonably withheld or delayed, (ii) shall not be required if an Event of Default exists and (iii) shall not be required for an assignment by a Lender to a Lender or an affiliate of a Lender), but without the Borrowerconsent of any other Lender, assign to an assignee one or more banks or other financial institutions all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itand the Other Agreements; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to Agent, for its acceptance and recording in the Administrative Agent Register (with a copy to the Collateral Agent) as defined below), an Assignment and Acceptance Agreement in the form attached hereto as Exhibit D (the “Assignment and Acceptance”), and a processing and recordation fee of Three Thousand Five Hundred and No/100 Dollars ($3,500.00) to be paid by the applicable tax forms required by Section 13.03(gassignee, and (ii) no such assignment shall be for less than Five Million and No/100 Dollars ($5,000,000.00). Notwithstanding Upon such execution and delivery of the Assignment and Acceptance to Agent and Agent’s recording of such assignment in the Register, from and after the date specified as the effective date in the Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any other provision rights it may have prior to such assignment pursuant to Section 23 of this Section 13.06Agreement which will survive) and be released from its obligations under this Agreement (and, no assignment by any Lender to in the Borrower or any case of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred Assignment and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in Acceptance covering all or a the remaining portion of such an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). Any attempted assignment or transfer in violation of this Section 20(c) shall be null and void.
(d) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement and the Other Agreements or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the Other Agreements, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any other Obligor or the performance or observance by Borrower or any other Obligor of its obligations under this Agreement and the Other Agreements, (iii) such assignee confirms that it has received a copy of this Agreement and the Other Agreements, together with copies of the financial statements referred to in Section 9 of this Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(e) Agent shall, maintain at its address referred to in Section 24 of the Agreement a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of Lenders and the Revolving Loan Commitment of, and principal amount of the Revolving Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Agent and Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by Borrower, Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Revolving Loans and any promissory notes evidencing Revolving Loans are registered obligations and the right, title and interest of any Lender and/or its assignees in and to such Revolving Loans or promissory notes, as applicable, shall be transferable only upon notation of such transfer in the Register. This Section 20(e) shall be construed so that the Revolving Loans and any promissory notes evidencing Revolving Loans are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Code and the applicable Treasury Regulations.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit D hereto, and in accordance with the provisions of this Section 20, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower. Within five (5) Business Days after its receipt of such notice, Borrower shall execute and deliver to Agent in exchange for the surrendered promissory note or notes, a new promissory note or notes to the order of the assignee in amounts equal to such assignee’s Revolving Loan Commitment and outstanding Revolving Loans hereunder and, if the assigning Lender has retained a portion of the Revolving Loans or its Revolving Loan Commitment, a new promissory note or notes to the order of the assigning Lender in an amount equal to the remaining Revolving Loan Commitment and outstanding Revolving Loans hereunder of such assigning Lender under the terms of this Agreement. Such new promissory note or notes shall re-evidence the indebtedness outstanding under the old promissory note or notes and shall be in the aggregate principal amount of such surrendered promissory note or notes, shall be dated of even date herewith and shall otherwise be in substantially the form of the promissory note or notes subject to such assignment.
(g) Each Lender may sell participations (without the consent of Agent, Borrower or any other Lender) to one or more parties, in or to all (or a portion) of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitment or the Revolving Loans owing to it); provided provided, that (A) such participant is not a Disqualified Lender, (Bi) such Lender’s obligations under this Agreement shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Diii) such Borrower, the Agents Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and or any Other Agreement, (E) each Participant iv)such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and rights to approve any amendment, modification amendment or waiver of this Agreement or any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 Other Agreement and (Bv) no Participant any such participant shall not be entitled to receive any amount greater payments under Section 2.10, 2.11, this Agreement or 13.03 which is greater any Other Agreement than the amount the related such Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except receive with respect to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationrights participated.
(iih) In Each Lender agrees that, without the event that prior written consent of Borrower and Agent, it will not make any Lender sells participations assignment hereunder in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all manner or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to circumstances that would require registration or qualification of, or filings in respect of, any Person except to the extent that such disclosure is necessary to establish that such commitment, loan Revolving Loan or other obligation is in registered form Liabilities under Section 5f.103-1(c) the securities laws of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner America or of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Registerjurisdiction.
(di) The Administrative AgentIn connection with the efforts of any Lender to assign its rights or obligations or to participate interests, on behalf of and acting solely for this purpose as the nonfiduciary agent of the such Lender may disclose any information in its possession regarding Borrower, shall maintain at its address specified in Section 13.02 provided that any assignee or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower participant or any Lender at any reasonable time potential assignee or participant agrees to follow and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained confidentiality requirements set forth in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower28 hereof.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Apac Customer Service Inc), Loan and Security Agreement (Apac Customer Service Inc)
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have objected in writing within five (5) Business Days of receipt of any such request for consent; and provided, further, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law12.01). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g12.03(g). Notwithstanding any other provision of this Section 13.0612.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedpermitted unless each Lender has been offered the opportunity to participate in any such assignment on a pro rata basis on the same terms.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.09, 2.10, 2.11, and 13.03 12.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.09, 2.10, 2.11, or 13.03 12.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all . An Advance may be participated in whole or any portion in part only by registration of such participation on the Participant Register (including and each Note, if any, shall expressly so provide). The Participant Register shall be available for inspection by the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except Borrower to the extent that such disclosure is necessary for the Borrower to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) 1 of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Collateral Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 12.02 or such other address as the Administrative Collateral Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts12.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.0612.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
(g) In the event that any Lender makes a claim for any payment, reimbursement, compensation, indemnity or other amount pursuant to Section 2.09 or 12.03, the Borrower may, upon not less than five (5) days prior written notice to such Lender, the Administrative Agent and the Collateral Agent, require that any such Lender transfer all of its rights and obligations hereunder and under the other Facility Documents either to (i) the Borrower so long as no Default or Event of Default exists or would result from such transfer (which transfer shall be effected through prepayment of all Advances Outstanding of the affected Lender), (ii) any other then existing Lender (with the consent of such existing Lender in its sole discretion) or (iii) to any assignee selected by the Borrower who would not then be entitled to any payment, reimbursement, compensation indemnity or other amount pursuant to Section 2.09 or 12.03, at a price equal to such transferring Lender’s Advances Outstanding plus accrued and unpaid Interest thereon and its ratable portion of the accrued and unpaid Commitment Fees. Any such transfer (other than to the Borrower) will be effected in accordance with the procedures described in Section 12.06(a). At the time of any such transfer, the Borrower shall pay the transferring Lender any other Obligations then owed to such Lender.
Appears in 2 contracts
Sources: Credit and Security Agreement (Business Development Corp of America), Credit and Security Agreement (Business Development Corp of America)
Assignability. (a) Each Lender may, with The rights and obligations of the parties under this Agreement and under any Advance shall not be assigned by any Borrower without the prior written consent of Administrative Agent. Subject to the Administrative Agent foregoing, this Agreement and any Advance shall be binding upon and shall inure to the Borrowerbenefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors and permitted assigns hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Each Lender, upon at least five (5) Business Days’ written notice to Borrower Representative and Calculation Agent, may from time to time assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion and the other Facility Documents to any Affiliate of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each without consent of the Borrower’s and the Administrative Agent’s Borrowers or any other Person with prior written consent of Borrowers (such consent not to any such assignment (A) shall not be unreasonably withheld or delayed; (provided provided, that a Lender may not make any no such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) consent shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells an executed assignment and acceptance by such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇L▇▇▇▇▇ as nonfiduciary agent and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Administrative Agent and each Lender acknowledges and agrees that it shall be considered reasonable for a Borrower to withhold its consent in connection with an assignment to a competitor of such Borrower or any of its Affiliates. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the Borrower shall maintain a register on which it enters extent of the name and address of all participants percentage or portion set forth in the Advances held by it Assignment and Acceptance, and shall succeed to the principal amount applicable rights and obligations of such Lender hereunder, and (and stated interest onb) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no such Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitmentsshall, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Each such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance shall be delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any Administrative Agent. Unless otherwise stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) , Borrower Parties and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIBCalculation Agent shall continue to take directions solely from Lender unless otherwise notified by Administrative Agent in writing. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Administrative Agent may distribute to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment prospective assignee any document or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished other information delivered to the applicable Lender by Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerParties.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Offerpad Solutions Inc.), Loan and Security Agreement (Offerpad Solutions Inc.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required (other than with respect to an assignment to a MS Competitor) if (x) a Material Default or an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent ofof (other than with respect to a participation to a MS Competitor), but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and proposed Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. This Section 13.06(c)(ii) shall be construed so that such commitments, loans, letters of credit or other obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code, Section 5f.103-1(c) of the United States Treasury regulations, and any other related regulations or successor provisions or regulations.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Amounts to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund), Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund)
Assignability. (a) Each Any Lender may, with the consent of the Administrative Agent and the Borrower, may assign to an assignee one or more assignees (provided that no assignments shall be made to any Loan Party or its Affiliates or to a natural Person) all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Commitment and the Loans at the time owing to it), with the prior written consent (such consent not to be unreasonably withheld or interests therein owned by it, together with ratable portions delayed) of its Individual Lender Maximum Funding Amount)the Borrower Representative and the Administrative Agent; provided that:that (x) no consent of the Borrower Representative or the Administrative Agent shall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund and (y) no consent of the Borrower Representative shall be required if an Event of Default has occurred and is continuing, for an assignment to any other assignee; provided, further, that the Borrower Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof.
(b) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; Agreement, and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500.
(c) Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The names and addresses of the Lenders, the Aggregate Commitment, the Aggregate Loan Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Loan Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment by any Lender to transfer of the Borrower Aggregate Loan Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuingthis Agreement. This Section 10.03(c) shall be permittedconstrued so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h), and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(bd) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior written consent of Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the Agents information contained therein in the Register and (iii) give prompt notice thereof to the LendersBorrowers and to the Calculation Agent.
(ie) Any Lender may, without the consent of, but with notice to, of any Loan Party (except in the Borrowercase of participations to Approved Participants as described below), sell participations to Participants one or more Persons (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loans); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such Borrowerthe Borrowers, the Agents Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Loan Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendmentamendment, modification or waiver that (i) increases the Commitment participated to such Participant, (ii) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof, (iii) reduces any fees payable by the Borrowers to the Administrative Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees, (iv) extends the Maturity Date (other than pursuant to the Extension Term), (v) other than as permitted by this Agreement, releases the security interest in substantially all of the Collateral or releases guarantees of all or substantially all Guarantors or (vi) amends, modifies or waives any provision of the definition of “Majority Lenders” or Section 10.01. The Borrowers acknowledge and agree that any Lender’s source of funds may derive in part from its Participants. Accordingly, references in Section 2.09 or 2.10 and the other terms and provisions of this Agreement and the other Loan Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.09, 2.10, 2.11, and 13.03 2.12 (subject to the requirements and limitations therein, including the requirements under Section 2.12(f) it being understood that the documentation required under Section 2.12(f) shall apply be delivered to each Participant the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))10.03; provided that such Participant (A) such Participant agrees to be subject to the provisions of Section 13.03(g) 2.22 as if it were an assignee under clause paragraph (a) of this Section 13.06 10.03; and (B) no Participant shall not be entitled to receive any amount greater payment under Section 2.09, 2.10, 2.11, or 13.03 which is greater 2.12, with respect to any participation, than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In . Each Lender that sells a participation shall, acting solely for this purpose as an agent of the event that any Lender sells participations in any portion of its rights and obligations hereunderBorrower, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it each Participant and the principal amount of amounts (and stated interest oninterest) of each Participant’s interest in the portion of Loans or other obligations under the Advance which is the subject of the participation Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans loans, letters of credit or its other obligations under any Facility Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of or as necessary for any Borrower, the proposed United States Treasury RegulationsAdministrative Agent or the U.S. Withholding Agent to satisfy its obligations under FATCA. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
. Notwithstanding the foregoing, the sales of participations to Approved Participants shall be subject to prior written consent (dwhich consent shall not be unreasonably withheld) The of the Borrower Representative and the Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent ; provided that no consent of the BorrowerBorrower Representative shall be required if an Event of Default has occurred and is continuing; provided, further, that the Borrower Representative shall maintain at its address specified in Section 13.02 or be deemed to have consented to any such other address as participation to an Approved Participant unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. For the avoidance of doubt, it is understood and agreed that no Participant shall designate in writing have the additional rights and obligations granted to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender Approved Participant” under this Agreement (and any stated interest thereon). The entries in unless the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection assignment to such Participant has been approved by the Borrower or any Lender at any reasonable time Representative and from time to time upon reasonable prior notice. An Advance the Administrative Agent (and a Noteand, if anyapplicable, evidencing the samerelated Assigning Lender has assigned its voting rights to such Participant) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined further described in the Investment Company Act (a definition of “Qualified PurchaserApproved Participant”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) The Loan Parties may not assign any of their respective rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Majority Lenders.
(g) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower Borrowers or the Administrative Agent; provided provided, that no such pledge or grant of a security interest shall (x) release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretohereto or (y) create any additional, or modify any existing, obligations of the Borrowers under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Allocated Facility Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Lawapplicable law, regulation or Governmental Authority. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or Borrower, any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) a Competitor shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17; (E) such Participants are not Competitors. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all . An Advance may be participated in whole or any portion in part only by registration of such participation on the Participant Register (including and each Note, if any, shall expressly so provide). Any participation of such Advance may be effected only by the identity registration of any such participation on the Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except Register. The Participant Register shall be available for inspection by the Borrower to the extent that such disclosure is necessary for the Borrower to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) 1 of the United States Treasury Regulations and Section 1.163-5(b) 5 of the proposed Proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Allocated Facility Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: First Omnibus Amendment (Pennantpark Investment Corp), Revolving Credit and Security Agreement (Pennantpark Investment Corp)
Assignability. (a) Each The Borrower shall not have the right to assign this Credit Agreement or any interest therein except with the prior written consent of the Lenders. No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (c) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (g) of this Section or (iii) by way of pledge or assignment of a scrutiny interest in accordance with paragraph (b) of this Section.
(b) Notwithstanding subsection (c) of this Section 13.5, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging or assigning a security interest in all or any portion of its rights under this Credit Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or (ii) granting assignments or participations in such Lender’s Loans and/or Commitments hereunder to any Approved Assignee. Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an affiliate of such Lender except to the extent such transfer would result in increased costs to the Borrower.
(c) Any Lender may, in the ordinary course of its lending business and in accordance with Applicable Law, at any time, assign to any Approved Assignee and, with the consent of the Administrative Agent and, so long as no Event of Default has occurred or is continuing, the Borrower (such consent not to be unreasonably withheld or delayed) and concurrent notice to the Borrower, but without the consent of any other Lender, assign to an assignee one or more other Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itCredit Agreement; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
however, that (i) each of the Borrower’s and Borrower shall be deemed to have given its consent ten (10) Business Days after the Administrative date written notice thereof has been delivered to the Borrower by the assigning Lender (through the Agent’s ) unless such consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if is expressly refused by the assignee is a Permitted Assignee with respect Borrower prior to such assignor; and
tenth (10th) Business Day, (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (with a copy to the Collateral Agent) as defined below), an Assignment and Acceptance Assumption, together with a processing and recordation fee of $3,500 to be paid by the applicable tax forms required by assignee, (iii) no such assignment shall be for less than $4,000,000 or, if less, the entire remaining principal amount of the Loans of such Lender and (iv) if such assignee is a Foreign Lender, all of the requirements of Section 13.03(g). Notwithstanding 2.4(b) shall have been satisfied as a condition to such assignment; and provided, further, that any other provision of this Section 13.06, no assignment by any Lender to an Approved Assignee shall not be subject to the Borrower or any minimum assignment amounts specified herein. Upon such execution and delivery of its Affiliates or any Disqualified Institution the Assignment and Assumption to the Agent, from and after the Acceptance Date, (except if an Event of Default has occurred and is continuingx) the assignee thereunder shall be permitted.
a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, such assignee shall have the rights and obligations of a Lender hereunder and (by) Borrower may not assign the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights or (other than any rights it may have pursuant to Section 13.7 which will survive) and be released from its obligations hereunder or any interest herein without under this Credit Agreement (and, in the prior written consent case of the Agents an Assignment and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in Assumption covering all or a the remaining portion of such an assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to be a party hereto).
(d) By executing and delivering an Assignment and Assumption, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Assumption, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Credit Parties or the performance or observance by the Credit Parties of any of its obligations under this Credit Agreement or any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto, (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the financial statements referred to in Section 6.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption, (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Credit Agreement and the other Credit Documents as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender.
(e) The Agent shall maintain at its address referred to in Section 13.4 a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of (i) the names and addresses of the Lenders and (if applicable) the Commitments of, and principal amount of (and stated interest on) the Loans owing to, each Lender from time to time (the “Register”) and (ii) information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register and copies of each Assignment and Assumption shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Assumption executed by an assigning Lender, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower..
(g) Each Lender may sell participations, without the consent of the Agent, the Borrower or any other Lender, to one or more parties other than (w) the Credit Parties, or any of the Credit Parties’ Affiliates or Subsidiaries (other than Sponsor Affiliated Lenders as permitted by Section 13.5(k)), (x) any Defaulting Lender, (y) a natural Person or (z) so long as no Event of Default under Section 10.1(a) or (f) has occurred or is continuing, a Disqualified Lender (each, a “Participant”), in or to all or a portion of its rights and obligations under this Credit Agreement (including, without limitation, all or a portion of its Commitments and the Loans owing to it); provided that (A) such participant is not a Disqualified Lender, (Bi) such Lender’s obligations under this Credit Agreement (including, without limitation, its Commitments to the Borrower hereunder) shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Diii) such the Borrower, the Agents Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement (it being understood that the documentation required under Section 2.4(c) shall be delivered to the participating Lender) and (Eiv) such Lender shall not transfer, grant, assign or sell any participation under which the Participant shall have rights to approve any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans, (B) reduce the amount of any installment of principal of the Loans, (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to the Loans, or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder. The Borrower agrees that each Participant shall have agreed be entitled to be bound by this the benefits of Sections 3.4, 3.7 and 2.4 (subject to the requirements and limitations therein, including the requirements under Section 13.06(c), Section 13.06(d), Section 13.06(e2.4(e) and 2.4(f) (it being understood that the documentation required under Section 13.17. Any agreement pursuant 2.4(e) and 2.4(f) shall be delivered to which a Lender sells such a participation shall provide that such Lender shall retain the sole right participating Lender)) to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (ac) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that such Participant (A) such Participant agrees to be subject to the provisions of Section 13.03(g) 2.8 as if it were an assignee under clause paragraph (ac) of this Section 13.06 Section; and (B) no Participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 2.4 or 3.4, 2.11with respect to any participation, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In . Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the event that any Lender sells participations in any portion of its rights and obligations hereunderBorrower, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it each Participant and the principal amount of amounts (and stated interest oninterest) of each Participant’s interest in the portion of Loans or other obligations under the Advance which is the subject of the participation Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans loans, letters of credit or its other obligations under any Facility Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Credit Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dh) The Administrative Each Lender agrees that, without the prior written consent of the Borrower and the Agent, on behalf of and acting solely for this purpose as it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or other Obligation under the nonfiduciary agent securities laws of the BorrowerUnited States of America or of any jurisdiction.
(i) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, such Lender may disclose any information in its possession regarding the Borrower or any of its Subsidiaries so long as it advises of the prospective assignee of the confidentiality provisions set forth herein and such prospective assignee agrees to abide by such confidentiality provisions.
(j) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall maintain at its address specified be effective unless and until, in Section 13.02 or such other address as the Administrative Agent shall designate in writing addition to the Lendersother conditions thereto set forth herein, a copy the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its pro rata share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (paragraph, then the “Register”) for the recordation assignee of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated such interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as deemed to be a Defaulting Lender hereunder for all purposes of this Agreement. The Register Credit Agreement until such compliance occurs.
(k) In case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 15% of the aggregate unpaid principal amount of the Loans then outstanding (determined as of the time of such purchase), (2) in the event that any proceeding under the Bankruptcy Code shall be available for inspection instituted by or against the Borrower or any Guarantor, each Sponsor Affiliated Lender at any reasonable time shall acknowledge and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the sameagree that they are each “insiders” under Section 101(31) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or Bankruptcy Code and, as such, the Borrower an updated version of Schedule 1 reflecting claims associated with the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, Loans and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether Commitments owned by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assignbe included in determining whether the applicable class of creditors holding such claims has voted to accept a proposed plan for purposes of Section 1129(a)(10) of the Bankruptcy Code, or grant or, alternatively, to the extent that the foregoing designation is deemed unenforceable for any participations inreason, each Sponsor Affiliated Lender shall vote in such proceedings in the same proportion as the allocation of voting with respect to such matter by those Lenders who are not Sponsor Affiliated Lenders, except to the extent that any plan of its Advances or its Individual reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender Maximum Funding Amount in a manner that is less favorable in any material respect to any Person unless such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders, (A3) such Person shall have represented Sponsor Affiliated Lender will not receive information provided solely to Lenders and agreed will not be permitted to attend or participate in writing that it is (or receive any notice of) Lender meetings or conference calls and will not be entitled to challenge the Agent’s and the Lenders’ attorney-client privilege as a Qualified Purchaser and a QIB at the time result of such assignment or participationtheir status as Sponsor Affiliated Lenders, (B4) any purchases by Sponsor Affiliated Lenders shall require that such Person agrees that it will be bound by Sponsor Affiliated Lender clearly identify itself as a Sponsor Affiliated Lender in any Assignment and Assumption executed in connection with such purchases or sales and each such Assignment and Assumption shall contain customary “big boy” representations but no requirement to make representations as to the restrictions on contained in this Section 13.06(e)absence of any material nonpublic information, (C5) a copy of each Sponsor Affiliated Lender waives any rights to bring any action in connection with such representations purchased Loans or agreements shall have been furnished to Commitments against the Borrower Agent in its capacity as such and (D6) Holdings and its Subsidiaries may not purchase any such representations or agreements shall run Loans. Each Sponsor Affiliated Lender agrees to notify the benefit of Agent promptly (and be enforceable by the Borrower.
in any event within ten (f10) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interestBusiness Days) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.if
Appears in 2 contracts
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.), Senior Secured Credit Facility (TLP Equity Holdings, LLC)
Assignability. (a) Each Any Lender may, with the consent of the Administrative Agent and the Borrower, may assign to an assignee one or more assignees (provided that no assignments shall be made to any Loan Party or its Affiliates or to a natural Person or, so long as no Event of Default has occurred and is continuing, to a competitor) all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by Commitment and the Loans at the time owing to it), together with ratable portions the prior written consent of the Borrower Representative and the Administrative Agent (such consent not to be unreasonably withheld; it being acknowledged and agreed that it will be reasonable for the Borrower Representative to withhold its consent to any assignment that includes any unfunded commitment to an entity that does not either have a rating of its Individual senior unsecured debt obligations of not less than investment grade or assets in excess of $2,000,000,000) and the Administrative Agent; provided that no consent of the Borrower Representative or the Administrative Agent shall be required (x) for an assignment to a Lender, an Affiliate of a Lender Maximum Funding Amountor an Approved Fund, (y) during any Extension Term or (z) if an Event of Default has occurred and is continuing, for an assignment to any other assignee (in each case, subject to the last sentence of this Section 10.03(a)); provided that:provided, further, that the Borrower Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Notwithstanding anything in the foregoing to the contrary, the consent of the Borrower Representative shall be required for any assignment to any assignee that is in the business of owning and renting single family homes in the United States or to any Affiliate of any such entity (which consent may be withheld in the sole discretion of the Borrower).
(b) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; Agreement, and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500.
(c) Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The names and addresses of the Lenders, the Aggregate Loan Principal Balance (and stated interest) and any interests therein, and any Assignments and Acceptances of the Aggregate Loan Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment by any Lender to transfer of the Borrower Aggregate Loan Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuingthis Agreement. This Section 10.03(c) shall be permittedconstrued so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(bd) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt written consent of notice thereof to the Agents Borrowers and to the LendersCalculation Agent.
(ie) Any Lender may, without the consent ofof any Loan Party (except in the case of participations to Approved Participants as described below), but with notice to, the Borrowerat no cost to any Loan Party, sell participations to Participants one or more Persons (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loans); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such Borrowerthe Borrowers, the Agents Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Loan Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendmentamendment, modification or waiver that (i) increases the Commitment participated to such Participant, (ii) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof, (iii) reduces any fees payable by the Borrowers to the Administrative Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees, (iv) extends the Maturity Date (other than pursuant to an Extension Term), (v) other than as permitted by this Agreement, releases the security interest in substantially all of the Collateral or releases guarantees of all or substantially all Guarantors or (vi) amends, modifies or waives any provision of the definition of “Majority Lenders” or Section 10.01. The Borrowers acknowledge and agree that any Lender’s source of funds may derive in part from its Participants. Accordingly, references in Section 2.10 or Section 2.11 and the other terms and provisions of this Agreement and the other Loan Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.10, 2.11, 2.12 and 13.03 2.13 (subject to the requirements and limitations therein, including the requirements under Section 2.13(f) it being understood that the documentation required under Section 2.13(f) shall apply be delivered to each Participant the participating Lender by the Lender that sold the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that such Participant (A) such Participant agrees to be subject to the provisions of Section 13.03(g) 2.22 as if it were an assignee under clause paragraph (a) of this Section 13.06 Section; and (B) no Participant shall not be entitled to receive any amount greater payment under Section Sections 2.10, 2.11, 2.12 or 13.03 which is greater 2.13, with respect to any participation, than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In . Each Lender that sells a participation shall, acting solely for this purpose as an agent of the event that any Lender sells participations in any portion of its rights and obligations hereunderBorrower, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it each Participant and the principal amount of amounts (and stated interest oninterest) of each Participant’s interest in the portion of Loans or other obligations under the Advance which is the subject of the participation Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans loans, letters of credit or its other obligations under any Facility Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
. Notwithstanding the foregoing, the sales of participations to Approved Participants shall be subject to prior written consent (dwhich consent shall not be unreasonably withheld) The of the Borrower Representative and the Administrative Agent; provided that no consent of the Borrower Representative shall be required if an Event of Default has occurred and is continuing. For the avoidance of doubt, on behalf it is understood and agreed that no Participant shall have the additional rights and obligations granted to each “Approved Participant” under this Agreement unless the assignment to such Participant has been approved by the Borrower Representative and approved in writing by the Administrative Agent (and, if applicable, the related assigning Lender has assigned its voting rights to such Participant) as further described in the definition of “Approved Participant”. Notwithstanding anything in the foregoing to the contrary, at any time no Default or Event of Default has occurred and acting solely is continuing, the consent of the Borrower Representative shall be required for this purpose as any participation to any participant that is in the nonfiduciary agent business of owning and renting single family homes in the United States or to any Affiliate of any such entity (which consent may be withheld in the sole discretion of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) The Loan Parties may not assign any of their respective rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Majority Lenders.
(g) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower Borrowers or the Administrative Agent; provided provided, that no such pledge or grant of a security interest shall (x) release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretohereto or (y) create any additional, or modify any existing, obligations of the Borrowers under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Assignability. This Agreement shall not be assigned or transferred by operation of Law or otherwise without the prior written consent of Navient and SLM BankCo, except that each Party may:
(a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion to any of its outstanding Advances Subsidiaries; provided, that no such assignment shall release Navient or interests therein owned by itSLM BankCo, together as the case may be, from any liability or obligation under this Agreement;
(b) in connection with ratable portions the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquiror that is not a competitor of the Provider, assign to the acquiror of such Subsidiary or business its Individual Lender Maximum Funding Amount)rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided that:
provided, however, that (i) no such assignment shall release Navient or SLM BankCo, as the case may be, from any liability or obligation under this Agreement; (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party; and (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Schedules and Exhibits hereto, that may be necessary or appropriate in order to assign such Services; and
(c) in connection with the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquiror that is a competitor of the Provider, assign to the acquiror of such Subsidiary or business its rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided, however, that (i) no such assignment shall release Navient or SLM BankCo, as the case may be, from any liability or obligation under this Agreement; (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party; (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Schedules and Exhibits hereto, that may be necessary or appropriate in order to ensure that such assignment will not (x) materially and adversely affect the businesses and operations of each of the Borrower’s Parties and their respective Affiliates or (y) create a competitive disadvantage for the Administrative Agent’s consent Provider with respect to an acquiror that is a competitor; and (iv) no Party shall be obligated to provide any such assignment (A) shall not be unreasonably withheld or delayed; (provided assigned Services to an acquiror that is a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required competitor if the assignee is provision of such assigned Services to such acquiror would disrupt the operation of such Party’s businesses or create a Permitted Assignee competitive disadvantage for such Party with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedacquiror.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Transition Services Agreement (Navient Corp), Transition Services Agreement (SLM Corp)
Assignability. a. Borrowers shall not have the right to assign or delegate their obligations and duties under this Agreement or any other Credit Documents or any interest therein except with the prior written consent of Agent and Lenders.
b. Notwithstanding subsection (ac) of this Section 13.6, nothing herein shall restrict, prevent or prohibit any Lender from granting assignments or participations in the Loans and/or Commitments to any Affiliate of such Lender or to any other existing Lender or Affiliate thereof.
c. Each Lender may, with the consent of Agent (such consent not to be unreasonably withheld or delayed) and (if no Event of Default is outstanding) with the Administrative Agent and consent of Borrowers (such consent not to be unreasonably withheld or delayed), but without the Borrowerconsent of any other Lender, assign to one or more Persons all or a portion of its rights and obligations under this Agreement and the Notes; provided that (i) for each such assignment, the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the terms hereof and recording in its books and records, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 to be paid by the assignee, (ii) no such assignment shall be for less than a Commitment share of $2,000,000 or, if less, the entire remaining Commitments of such Lender of the Commitments and (iii) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of both the Commitment of such Lender and all Loans of such Lender. Upon such execution and delivery of the Assignment and Acceptance to Agent, from and after the date specified as the effective date in the Assignment and Acceptance (the “Acceptance Date”), (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 13.8 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
d. Within two Business Days after demand by Agent, Borrowers shall execute and deliver to Agent in exchange for any surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to Borrowers) a new Note or Notes to the order of the assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Commitments, a new Note or Notes to the order of the assigning Lender in an amount equal to the Commitment or Commitments retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the Closing Date and shall otherwise be in substantially the form of the Note or Notes subject to such assignments.
e. Each Lender may sell participations (without the consent of Agent, Borrowers or any other Lender) to one or more parties in or to all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its outstanding Advances Commitments, the Loans owing to it and the Note or interests therein owned Notes held by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (Bi) such Lender’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Diii) such BorrowerLender shall remain the holder of any such Note for all purposes of this Agreement, the Agents (iv) Borrowers, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (Ev) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain not transfer, grant, assign or sell any participation under which the sole right to enforce this Agreement and participant shall have rights to approve any amendment, modification amendment or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans in which such participant is participating, (C) except as otherwise expressly provided in this Agreement, reduce the interest rate applicable to receive a greater amount results from a Change the Loans in Law that occurs after the Participant acquired the applicable participationwhich such participant is participating, or (D) except as otherwise expressly provided in this Agreement, reduce any fees payable hereunder.
(ii) In f. Each Lender agrees that, without the event that prior written consent of Borrowers and Agent, it will not make any Lender sells participations assignment or sell a participation hereunder in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all manner or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to circumstances that would require registration or qualification of, or filings in respect of, any Person except to the extent that such disclosure is necessary to establish that such commitmentLoan, loan Note or other obligation is in registered form Obligation under Section 5f.103-1(c) the securities laws of the United States Treasury Regulations and Section 1.163-5(b) of America or of any jurisdiction.
g. In connection with the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest errorefforts of any Lender to assign its rights or obligations or to participate interests, and Agent or such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding may disclose any notice to the contrary. For the avoidance of doubt, the Administrative Agent (information in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Registerpossession regarding Borrowers, their finances and/or Property.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (nFinanSe Inc.), Loan and Security Agreement (nFinanSe Inc.)
Assignability. (a) Each Lender may, with The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by Seller without the prior written consent of Buyer. Subject to the Administrative Agent foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the Borrowerbenefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Buyer may from time to time assign to an assignee all or a portion of its rights and obligations under this Agreement and the Facility Documents to any Person pursuant to an executed assignment and acceptance by Buyer and assignee (including “Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned without the prior written consent of Seller; provided, however, that, so long as no Event of Default shall have occurred and is continuing, no such Assignment and Acceptance shall be entered into or discussed with a Disqualified Institution without the prior written consent of Seller. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, Seller shall continue to take directions solely from Buyer unless otherwise notified by B▇▇▇▇ in writing. Buyer may, subject to first obtaining a customary confidentiality agreement, distribute to any prospective or actual assignee this Agreement, the other Facility Documents, any other document or other information delivered to Buyer by Seller.
(b) Buyer may sell participations in all or a portion of its outstanding Advances rights and obligations under this Agreement to any one or interests therein owned by itmore Persons without the prior written consent of Seller; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
however, that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an so long as no Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) , no such transaction shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein entered into with a Disqualified Institution without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified LenderSeller, (Bii) such LenderBuyer’s obligations under this Agreement shall remain unchanged, (Cii) such Lender Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) such Borrower, the Agents and the other Lenders Seller shall continue to deal solely and directly with such Lender Buyer in connection with such LenderBuyer’s rights and obligations under this Agreement and (E) each Participant the other Facility Documents except as provided in Section 22; and provided further that Buyer shall have agreed act as agent for all purchasers, assignees and point of contact for Seller pursuant to agency provisions to be bound agreed upon by this Section 13.06(c)Buyer, Section 13.06(d)its intended purchasers and/or assignees and Seller. Buyer may, Section 13.06(e) and Section 13.17. Any agreement pursuant subject to which first obtaining a Lender sells such a participation shall provide that such Lender shall retain the sole right customary confidentiality agreement, distribute to enforce this Agreement and to approve any amendment, modification prospective or waiver of any provision of actual participant this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participantother Facility Documents, agree any other document or other information delivered to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest Buyer by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationSeller.
(iic) In the event that any Lender sells participations in any Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubtAgreement, the Administrative Agent (parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed add agency provisions similar to those included in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or repurchase agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerfor similar syndicated repurchase facilities.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Assignability. (a) Each Lender mayThis Agreement and any Purchaser's rights and obligations herein (including ownership of its Participation) shall be assignable, in whole or in part, by such Purchaser and its successors and assigns with the prior written consent of the Administrative Seller, the Agent and the BorrowerInsurer, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itso long as the Insurer is the Control Party; PROVIDED, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s HOWEVER, that such consent to any such assignment (A) shall not be unreasonably withheld or delayedwithheld; (provided and PROVIDED, FURTHER, that a Lender may not make any no such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) consent shall not be required if the assignment is made to (i) any Affiliate of such Purchaser, (ii) any Liquidity Bank (or any Person who upon such assignment would be a Liquidity Bank) of such Purchaser, (iii) other Program Support Provider (or any Person who upon such assignment would be a Program Support Provider) of such Purchaser or (iv) the Insurer or any affiliate of the Insurer. Each assignor may, in connection with the assignment, disclose to the applicable assignee is any information relating to the Seller or the Pool Receivables furnished to such assignor by or on behalf of the Seller, the Insurer, the Agent, the Purchasers or the Purchaser Agents. Upon the assignment by a Permitted Assignee Purchaser in accordance with this SECTION 6.3, the assignee receiving such assignment shall have all of the rights of such Purchaser with respect to the Transaction Documents and the Investment (or such assignor; and
(ii) the Borrower’s consent to any such assignment portion thereof as has been assigned). Any Uninsured Investment transferred pursuant to this Section 13.06(a) SECTION 6.3 shall not be required if (x) an Event remain Uninsured Investment in the hands of Default the acquiring Purchaser. In the event that less than all of a Revolving Purchaser's Investment is being transferred pursuant to this SECTION 6.3, and such transferring Revolving Purchaser has any Uninsured Investment outstanding at the time of such transfer, the agreement or instrument pursuant to which such transfer is being effected shall have occurred (and not been waived by specify the Lenders in accordance with Section 13.01) or (y) such assignment portion of the transferred Investment that is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedUninsured Investment.
(b) Borrower Each Purchaser may at any time grant to one or more banks or other institutions (each a "LIQUIDITY BANK") party to a Liquidity Agreement or to any other Program Support Provider participating interests or security interests in its Participation. In the event of any such grant by a Purchaser of a participating interest to a Liquidity Bank or other Program Support Provider, the Purchaser shall remain responsible for the performance of its obligations hereunder. The Seller agrees that each Liquidity Bank or other Program Support Provider shall be entitled to the benefits of SECTIONS 1.8, 1.9 and 1.10.
(c) This Agreement and the rights and obligations of any Purchaser Agent hereunder shall be assignable, in whole or in part, by such Purchaser Agent and its successors and assigns; PROVIDED, HOWEVER, that if such assignment is to any Person that is not an Affiliate of the assigning Purchaser Agent, such Purchaser Agent must receive the prior written consent (which consent in each case shall not be unreasonably withheld) of the Agent, the Insurer and the Seller.
(d) Except as provided in SECTION 4.1(d), neither the Seller nor the Servicer may assign its rights or delegate its obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsControl Party.
(e) Notwithstanding anything to the contrary set forth herein or in Without limiting any other Facility Documentrights that may be available under applicable law, each Lender hereunder, and each Participant, must at all times the rights of any Purchaser may be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that enforced through it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified its Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances Agent or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerother agents.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.[*]
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Adesa Inc), Receivables Purchase Agreement (Adesa Inc)
Assignability. (a) Each The Lender may, with the consent of the Administrative Agent and the Borrower, may assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Commitment and Uncommitted Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in LawAssignee. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) Borrowers an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g8.03(f). Notwithstanding The Lender, acting solely for this purpose as a non-fiduciary agent of Borrowers, shall maintain a register on which it enters the name and address of each Lender assignee, and the principal amounts (and stated interest) of each Lender assignee’s interest in the rights and obligations under this Agreement and related Facility Documents (the “Register”). No assignment shall be effective unless recorded in the Register. Subject to notification to the Borrowers of an assignment and compliance with the terms of the Intercreditor Agreement, the assignee shall be a party hereto and, to the extent of the interest assigned, have the rights and obligations of the existing Lender under this Agreement, and the existing Lender shall, to the extent of the interest assigned, be released from its obligations under this Agreement. The Borrowers hereby agree to execute any amendment and/or any other provision document that may be necessary to effectuate such an assignment, including an amendment to this Agreement to provide for multiple lenders and an administrative agent to act on behalf of such lenders. Any assignment or transfer by the Lender of rights or obligations under this Agreement that does not comply with this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing8.06(a) shall be permittedtreated for purposes of this Agreement as a sale by the Lender of a participation in such rights and obligations in accordance with 8.06(c).
(b) Borrower The Borrowers may not assign its their rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the LendersLender.
(i) Any The Lender may, without the consent of, but with notice to, of the BorrowerBorrowers, sell participations to Participants that are Permitted Assignees in all or a portion of such the Lender’s rights and obligations under this Agreement; , provided that (A) such participant is not a Disqualified Lender, (B) such the Lender’s obligations under this Agreement shall remain unchanged, (CB) such the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders Borrowers shall continue to deal solely and directly with such the Lender in connection with such the Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c8.06(c), Section 13.06(d), Section 13.06(e8.06(e) and Section 13.178.16. Any agreement pursuant to which a the Lender sells such a participation shall provide that such the Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; , provided that such agreement may provide that such the Lender will not, without the consent of the Participant, agree to any Fundamental AmendmentAmendment that affects such Participant. Sections 2.10Section 8.03 (subject to the requirements and limitations therein, 2.11, and 13.03 including the requirements under Section 8.03(f) (it being understood that the documentation required under Section 8.03(f) shall be delivered to the participating Lender)) shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))8.06; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 8.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(iii) In the event that any the Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ the Lender, as nonfiduciary agent for the Borrower Borrowers, shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance and any other obligations under the Facility Documents which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all . An Advance may be participated in whole or any portion in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The Participant Register (including shall be available for inspection by the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except Borrowers to the extent that such disclosure is necessary for the Borrowers to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such the Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative AgentNotwithstanding any other provision in this Agreement, on behalf (i) the Lender may at any time create a security interest in, or pledge, all or any portion of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender rights under this Agreement (and in favor of any stated interest thereon). The entries Federal Reserve Bank in accordance with Regulation A of the Register shall be conclusive and binding for all purposes, absent manifest errorFederal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under Applicable Laws and this Section 8.06 shall not apply to any such pledge or grant of a security interest. No creation or grant of a security interest, pledge or collateral assignment pursuant to the Borrower, preceding sentence shall release the Agents and Lender from any of its obligations hereunder or substitute any pledgee or assignee for the Lenders shall treat each Person whose name is recorded in the Register Lender as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amountsparty hereto.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, the Lender, each Permitted Assignee which becomes a Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each The Lender and each Permitted Assignee which becomes a Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each The Lender and each Permitted Assignee which becomes a Lender further agrees agree that it they shall not assign, or grant any participations in, any of its Advances their respective Advances, Commitment or its Individual Lender Maximum Funding Uncommitted Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Mezzanine Loan and Security Agreement (Offerpad Solutions Inc.), Mezzanine Loan and Security Agreement (Offerpad Solutions Inc.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent The parties recognize and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided acknowledge that:
: (i) each Licensee’s performance hereunder will require, and the Company will rely upon, the exercise of the Borrower’s special creative skills, taste, personalities, industry standing and business acumen of the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayedpresent management and of those presently in control of Licensee; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the BorrowerCompany’s consent positive assessment, after extensive review, inquiry and investigation, of the creative skill, taste, personalities, industry standing and business acumen of Licensee’s present management and those presently in control of Licensee, specifically, J▇▇▇ ▇▇▇▇▇, has been a major factor in inducing the Company to enter into this Agreement, but for which assessment the Company could not have done so; (iii) the Company’s right to withhold approval of any and all Articles is an insufficient remedy to protect the Company from injury in the event performance hereunder were delegated to a third party who, in the Company’s judgment, did not possess all of the personal attributes described in subparagraphs (i) and (ii) of this paragraph, because the extensive exercise of such assignment pursuant right, if necessary to protect the prestige of the Licensed M▇▇▇, would frustrate the purpose of this Section 13.06(aAgreement and adversely affect the marketing and sale of other items of marked under the Licensed M▇▇▇; and (iii) the understanding and intent of the parties are that, under applicable law, this Agreement constitutes a personal service contract and that Licensee’s performance hereunder is non-delegable as a matter of law. In light of the foregoing and of the personal nature of Licensee’s performance hereunder, this Agreement shall not be required if (x) an Event of Default assigned by Licensee nor shall Licensee have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties right to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign sublicense its rights or obligations hereunder or any interest herein without hereunder, without, in either case, the prior written consent of the Agents and the Lenders.
(i) Any Lender mayCompany, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under except that Licensee may assign this Agreement; provided that (A) , in its entirety, to a company wholly owned and controlled by J▇▇▇ H▇▇▇▇ for such participant time such company is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents wholly owned and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound controlled by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such J▇▇▇ ▇▇▇▇▇▇ . The Company agrees to consider, in good faith, a request by Licensee for such consent; provided, however, that in light of, inter alia, the subjective nature of Licensee’s personal attributes upon which the Company will rely hereunder as nonfiduciary agent for described above, the Borrower Company shall maintain a register on which it enters have the name sole discretion to refuse such request. For the purpose of this Paragraph 19.6 (and address of all participants in addition to any direct assignment), any direct or indirect sale or transfer, or successive sales or transfers in the Advances held by it and the principal amount aggregate, of (and stated interest on) of the that portion of the Advance capital stock (or interests therein) of Licensee or the voting rights of such capital stock, or any merger, consolidation or similar combination entered into by Licensee or any parent corporation that limits or reduces the rights or abilities of current owners of Licensee to control the business and affairs of Licensee shall constitute an assignment of Licensee’s rights under this Agreement which is requires the subject prior written consent of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all Company. Any purported assignment, sublicense or any portion transfer in violation of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register this Paragraph 19.6 shall be conclusive absent manifest error, void and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrowereffect, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy be an event of default under this Agreement and each signature page hereto and each Assignment and Acceptance delivered shall give the Company the right to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of terminate this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Licensing Agreement (Fashion House Holdings Inc), Licensing Agreement (Fashion House Holdings Inc)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) other than in the case of an assignment to a Disqualified Lender, the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) such assignment is required by any Change in Law or (y) an Event of Default shall have occurred (and has not been waived by the Lenders in accordance with Section 13.01) or and either (y1) such assignment is required as a result of by any Change in LawLaw or (2) such Event of Default occurred under Section 6.01(a), (b) or (i). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral AgentAgent and the Collateral Administrator) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenderseach Lender.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.1713.17 and (E) such Participants are not Disqualified Lenders (unless an Event of Default has occurred and is continuing and has not been waived by the Lenders in accordance with Section 13.01). Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g13.03(h) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Agents, the Collateral Administrator and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Amounts to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Fidelity Private Credit Fund), Revolving Credit and Security Agreement (Fidelity Private Credit Fund)
Assignability. (a) Each Lender may, with Party agrees that the consent entirety of the Administrative Agent and the Borrowerother Party’s unperformed rights, assign to an assignee all or a portion of its rights duties, powers, benefits and obligations under this Agreement are assignable to a commonly owned affiliate, provided that Party agrees to accept such assignment and assume all such obligations hereunder. In addition, Buyer recognizes that Seller may assign its rights hereunder to a third party upon Seller providing prior written notice to Buyer, and that Buyer may assign its rights hereunder to a third party only upon obtaining the prior written consent of Seller and the Collateral Agent (as defined herein). Notwithstanding anything to the contrary herein , Seller (or any of its trustees or successors) shall have the right, without any notice to Buyer or any of its affiliates, to freely and without limitation, assign this Agreement to any person or entity, including, without limitation, the to ▇▇▇▇▇ Fargo Bank, National Association, as collateral agent for the lenders (including all or a portion any successor thereto, the “Collateral Agent”) under the Third Amended and Restated Credit Agreement, dated as of its outstanding Advances or interests therein owned by itFebruary 13, together with ratable portions 2008, among EMHC, Seller, certain other subsidiaries of its Individual Lender Maximum Funding AmountEMHC, and the financial institutions party thereto (as amended, supplemented and otherwise modified from time to time, the “Credit Agreement”); provided that:
. Each of Seller and Purchaser agrees and acknowledges that (i) each this Agreement constitutes an “executory contract” as such term is used in Title 11 of the Borrower’s United States Code (as amended, the “Bankruptcy Code”), is not a financial accommodations contract for purposes of the Bankruptcy Code and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such is capable of both assumption and assignment pursuant to this clause (i)(A) to a Disqualified Institution) section 365 of the Bankruptcy Code and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to rights of Seller under this Section 13.06(aAgreement may be exercised (without the necessity of assumption) shall not be required if by Seller (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates trustees or successors) under the Bankruptcy Code and any applicable provisions of bankruptcy or non-bankruptcy law or by an unrelated third party, provided, however, that in the event the trustee fails to honor this Agreement or does not enter into an agreement to assign the Station to a third party, whereby the Station remains with the Licensee, the Initial Payment, and any additional payments on the Purchase Price, shall be returned to Buyer. Purchaser agrees that neither it nor any of its affiliates shall, directly or indirectly, (i) object to, delay, or take any other action to interfere, directly or indirectly, in any respect of the exercise of any rights or powers hereunder and/or the assumption and/or assignment of this Agreement pursuant to any provision of the Bankruptcy Code or any Disqualified Institution other provision or principle of bankruptcy or non-bankruptcy law, or (except if an Event ii) encourage any person or entity to do any of Default has occurred and is continuing) shall be permittedthe foregoing.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided Buyer hereby acknowledges that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender Seller will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure ▇▇▇▇▇ Fargo Bank, National Association, as collateral agent for the lenders (including any successor thereto, the "Collateral Agent") under the Third Amended and Restated Credit Agreement, dated as of February 13, 2008, among Equity Media Holdings Corporation, a Delaware corporation (“EMHC”), Seller, certain other subsidiaries of EMHC, and the financial institutions party thereto (as amended, supplemented and otherwise modified from time to time, the "Credit Agreement"), and Buyer hereby consents to the granting of such security interest. Buyer further agrees that, following such grant, (x) Buyer shall execute and deliver any and all instruments, certificates and documents, and take any and all actions, as the Seller or the Collateral Agent may reasonably request from time to time to ensure that the Collateral Agent has and maintains a first priority security interest in the rights of the Seller under this Agreement and (y) the Collateral Agent shall have the right, both prior to and following any default under the Credit Agreement and without any further action by any other party hereto, to exercise the rights of the Seller under this Agreement and to enforce the obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoBuyer hereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Equity Media Holdings CORP), Asset Purchase Agreement (Equity Media Holdings CORP)
Assignability. (a) Borrowers shall not have the right to assign this Agreement or any interest therein except with the prior written consent of Agent and all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower.
(c) Each Lender may, with the consent of the Administrative Agent and Borrowers, which consent shall not be unreasonably withheld, but without the Borrowerconsent of any other Lender, assign to an assignee one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itand the Loan Documents; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to Agent, for its acceptance and recording in the Administrative Agent Register (with a copy to the Collateral Agent) as defined below), an Assignment and Acceptance Agreement in the form attached hereto as Exhibit C (the “Assignment and Acceptance”), and a processing and recordation fee of Three Thousand Five Hundred and No/100 Dollars ($3,500.00) to be paid by the applicable tax forms required by Section 13.03(gassignee, and (ii) no such assignment shall be for less than Five Million and No/100 Dollars ($5,000,000.00). Notwithstanding Upon such execution and delivery of the Assignment and Acceptance to Agent, from and after the date specified as the effective date in the Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any other provision rights it may have pursuant to Section 15.17 of this Section 13.06Agreement which will survive) and be released from its obligations under this Agreement (and, no assignment by any Lender to in the Borrower or any case of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred Assignment and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in Acceptance covering all or a the remaining portion of such an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(d) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement and the Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the Loan Documents, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or any other Obligor or the performance or observance by Borrowers or any other Obligor of its obligations under this Agreement and the Loan Documents, (iii) such assignee confirms that it has received a copy of this Agreement and the Loan Documents, together with copies of the financial statements referred to in Section 9.7 of this Agreement and such other documents and information as it has denied appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(e) Agent shall maintain at its address referred to in Section 15.16 of the Agreement a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of Lenders and the Revolving Loan Commitment of, and principal amount of the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Agent and Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by Borrower, Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrowers. Within five (5) Business Days after its receipt of such notice, Borrowers shall execute and deliver to Agent in exchange for the surrendered promissory note or notes, a new promissory note or notes to the order of the assignee in amounts equal to such assignee’s commitments and outstanding Loans hereunder and, if the assigning Lender has retained a portion of the Loans, a new promissory note or notes to the order of the assigning Lender in an amount equal to the remaining commitments and outstanding loans hereunder of such assigning Lender under the terms of this Agreement. Such new promissory note or notes shall re-evidence the indebtedness outstanding under the old promissory note or notes and shall be in the aggregate principal amount of such surrendered promissory note or notes, shall be dated of even date herewith and shall otherwise be in substantially the form of the promissory note or notes subject to such assignment.
(g) Each Lender may sell participations (without the consent of Agent, Borrowers or any other Lender) to one or more parties, in or to all (or a portion) of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitment or the Loans owing to it); provided provided, that (A) such participant is not a Disqualified Lender, (Bi) such Lender’s obligations under this Agreement shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Diii) such BorrowerBorrowers, the Agents Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (Eiv) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain not transfer, grant, assign or sell any participation under which the sole right to enforce this Agreement and participant shall have rights to approve any amendment, modification amendment or waiver of any provision of this Agreement; provided that such agreement may provide that such .
(h) Each Lender will notagrees that, without the prior written consent of the ParticipantBorrowers and Agent, agree to it will not make any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth hereunder in Section 13.03, including the requirements any manner or under Section 13.03(g)); provided any circumstances that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11would require registration or qualification of, or 13.03 which is greater than the amount the related Lender would have been entitled to under filings in respect of, any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan Loan or other obligation is in registered form Obligations under Section 5f.103-1(c) the securities laws of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner America or of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Registerjurisdiction.
(di) The Administrative Agent, on behalf In connection with the efforts of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Noteassign its rights or obligations or to participate interests, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at disclose any time pledge or grant a security interest information in all or any portion of its rights (including rights possession regarding Borrowers, subject to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoSection 15.7.
Appears in 2 contracts
Sources: Credit Agreement (Lawson Products Inc/New/De/), Credit Agreement (Lawson Products Inc/New/De/)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, 17.7.1 PROFUSA shall not assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or the rights, obligations and interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations granted hereunder or any interest herein without the prior written consent of the Agents and the LendersJV, which consent shall not be unreasonably withheld.
17.7.2 JV shall have the right (i) Any Lender maybut not the obligation), without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the prior written consent of the ParticipantPROFUSA, agree to perform any Fundamental Amendment. Sections 2.10, 2.11, or all of its obligations and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to exercise any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion all of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address interests under this Agreement through any of all participants in the Advances held by it and the principal amount of its Affiliates or its or their (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender Sub)licensees.
17.7.3 JV shall have any obligation the right (but not the obligations), without the prior written consent of PROFUSA, to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of assign this Agreement and each signature page hereto the rights, obligations and each Assignment and Acceptance delivered interests of JV to and accepted any of its Affiliates or its or their (sub)contractors or (sub)distributors or to any successor in interest (whether by it and a register merger, acquisition, asset purchase or otherwise) to all or substantially all of its medical device business or to any other Persons, provided that (the “Register”i) for the recordation no assignment shall be made to any Competitive Company, unless Section 5.2 of the names Shareholders Agreement applies and addresses provides otherwise, and (ii) JV shall provide written notice to PROFUSA within thirty (30) days after such assignment.
17.7.4 Any permitted successor of the Lenders and the aggregate outstanding principal amount a Party or any permitted assignee of the outstanding Advances maintained by each Lender all of a Party’s rights under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for that has also assumed all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such Party’s obligations hereunder in writing shall, upon any such succession or assignment or sale on the Register (and each Noteassumption, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish be deemed to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being as though named herein in substitution for the assigning Party, whereupon the assigning Party shall cease to be a signatory hereto party to this Agreement and shall cease to have any rights or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is obligations under this Agreement. All validly assigned rights of a Qualified Purchaser and a QIB. Each Lender further agrees that it Party shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run inure to the benefit of and be enforceable by by, and all validly delegated obligations of such Party shall be binding on and be enforceable against, the Borrower.
(f) Notwithstanding any other provision permitted successors and assigns of such Party. Any attempted assignment or delegation in violation of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion 17.6 shall be void and of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoeffect.
Appears in 1 contract
Sources: License Agreement (PROFUSA, Inc.)
Assignability. (a) Each Lender may, with The rights and obligations of the parties under this Repurchase Agreement and under any Transaction shall not be assigned by Sellers or Guarantor without the prior written consent of Buyer. Subject to the Administrative Agent foregoing, this Repurchase Agreement and any Transactions will be binding upon and will inure to the Borrowerbenefit of the parties and their respective successors and assigns. Nothing in this Repurchase Agreement express or implied, gives to any Person, other than the parties to this Repurchase Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Repurchase Agreement. Buyer may from time to time assign to an assignee all or a portion of its rights and obligations under this Repurchase Agreement and the other Facility Documents; pursuant to an executed assignment and acceptance by Buyer and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee is a party hereto and to each of the other Facility Documents to the extent of the percentage or portion set forth in the Assignment and Acceptance, and will succeed to the applicable rights and obligations of Buyer hereunder (including the rights and obligations under Section 7 hereof (including the provision of tax forms)), and (b) Buyer will, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the other Facility Documents. Unless otherwise stated in the Assignment and Acceptance, Sellers shall continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer may distribute to any prospective assignee this Repurchase Agreement, any Facility Document, and any other document or other information delivered to Buyer by Sellers. Buyer may sell participations to one (1) or more Persons in or to all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this AgreementRepurchase Agreement and the other Facility Documents; provided provided, however, that (Ai) such participant is not a Disqualified Lender, (B) such LenderBuyer’s obligations under this Repurchase Agreement shall will remain unchanged, (Cii) such Lender shall Buyer will remain solely responsible to the other parties hereto Sellers for the performance of such obligations, ; and (Diii) such Borrower, the Agents and the other Lenders Sellers shall continue to deal solely and directly with such Lender Buyer in connection with such LenderBuyer’s rights and obligations under this Repurchase Agreement and (E) each Participant shall have agreed to be bound by this the other Facility Documents except as provided in Section 13.06(c)7 hereof. Buyer may, Section 13.06(d)in connection with any repledge, Section 13.06(e) and Section 13.17. Any agreement assignment or participation or proposed repledge, assignment or participation pursuant to which a Lender sells such a participation shall provide that such Lender shall retain Sections 17 and 19 hereof, disclose to the sole right repledgee, assignee or participant or proposed repledgee, assignee or participant, as the case may be, any information relating to enforce this Agreement and Sellers, Guarantor or any of its Subsidiaries or to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent aspect of the ParticipantTransactions that has been furnished to Buyer by or on behalf of Sellers, agree to Guarantor or any Fundamental Amendmentof its Subsidiaries. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubtRepurchase Agreement, the Administrative Agent (parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Repurchase Agreement to secure obligations of such Lender, including any pledge or security interest granted add agency provisions similar to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee those included in repurchase agreements for such Lender as a party heretosimilar syndicated repurchase facilities.
Appears in 1 contract
Sources: Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required (other than with respect to an assignment to an Ares Competitor) if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.. USActive 54953942.1755479929.4-154-
(c) (i) Any Lender may, without the consent ofof (other than with respect to a participation to an Ares Competitor), but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ares Capital Corp)
Assignability. (a) Each Lender may, with This Agreement and all its provisions shall be binding upon and inure to the consent benefit of the Administrative Agent successors and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each permitted assigns of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The respective parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedhereto.
(b) Borrower This Agreement may not assign its rights or obligations hereunder or any interest herein be assigned by the Buyer without the prior written consent of the Agents Seller, which consent shall not be unreasonably withheld provided that the Buyer shall not be entitled to assign this Agreement on or before the Kami Mine has reached Substantial Completion Date (as defined in the Partnership Agreement). In the event of any such assignment, the Buyer and Hebei, subject to compliance with the Lendersother provisions of this Article 22, shall be released from all of their obligations hereunder (other than in respect of an assignment by Hebei or the Buyer to an Affiliate of Hebei or the Buyer, in which case Hebei shall remain jointly and severally liable pursuant to Article 29).
(ic) Any Lender mayOther than as set out in Section 22.1(g), this Agreement may not be assigned by the Seller without the prior written consent ofof the Buyer (which consent may be withheld for any reason), but except that the Seller may assign or transfer to a lender as security for indebtedness owing by it from time to time to such lender, its rights under this Agreement, including the right to receive payments. The Buyer will acknowledge and agree to such assignment to a lender of the Seller upon the Seller giving prior written notice to the Buyer. For greater certainty, notwithstanding any assignment to a lender in accordance with notice tothis Section 22.1(c), the Borrower, sell participations to Participants in all or a portion Seller shall remain responsible for the due performance of such Lender’s rights and its obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative AgentAny attempt to assign or transfer, on behalf of or to effect an assignment or transfer without the consents referred to above shall render such attempted assignment or transfer void. Subject to Section 22.1(b) and acting solely for this purpose as 22.1(g), any such assignment or transfer with consent shall not relieve the nonfiduciary agent of the Borrower, shall maintain at assigning party from its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender obligations under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and extent that the Borrower from time assignee fails to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amountsassume such obligations.
(e) Notwithstanding anything For purposes of Section 22.1(b), the Seller shall not be considered to be acting unreasonably if it withholds its consent to assignment or transfer, or withholds its release of an assigning party, on the contrary set forth herein or in any other Facility Documentbasis that the financial and technical capability of the proposed assignee is, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A bona fide opinion of the Seller, not capable of performing the obligations of the assigning party under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerAgreement.
(f) Any assignment pursuant to this Article 22 (other than an assignment to a lender pursuant to Section 22.1(c)) to which a non-assigning party may have consented shall not be effective unless and until the assignee shall have agreed in advance in writing with the other party, on terms satisfactory to such other party, acting reasonably, to assume and to be bound by and liable to perform the obligations and liabilities of the assigning party under this Agreement.
(g) Notwithstanding the foregoing, the Seller may assign this Agreement in conjunction with any other provision sale, assignment or disposition by the Seller of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any a material portion of its rights the Kami Mine (including rights or any direct or indirect interest held by the Seller therein) provided that the purchaser, assignee or disposee has entered into an agreement with the Buyer agreeing to payment assume and be bound by and perform the obligations of principal and interest) under the Seller in this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any extent of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretointerest so acquired, in which case, the Seller shall be released therefrom.
Appears in 1 contract
Sources: Iron Ore Off Take Agreement (Alderon Iron Ore Corp.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(ba) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(iii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dc) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder -130- for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsCommitments.
(ed) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Commitment to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(fe) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund)
Assignability. (a) Each Lender mayThe rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by any Seller Party without the prior written consent of Buyer. Buyer may from time to time, with without the consent of the Administrative Agent and the BorrowerSeller, assign to an assignee all or a portion of its rights and obligations under this Agreement and the Program Documents to any party other than, prior to an Event of Default, a Competitor, including, without limitation, any Affiliate of Buyer, pursuant to an executed assignment and acceptance by Buyer and assignee (including “Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee shall be a party hereto and to each Program Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Program Documents. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Unless otherwise stated in the Assignment and Acceptance, Seller shall continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer may sell participations to one or more Persons (other than, prior to an Event of Default, a Competitor or any Person that is an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, a “plan” as defined by Section 4975 of the Code, or any entity deemed to hold “plan assets” of either of the foregoing, that would cause any Seller Party to incur any prohibited transaction excise tax penalties under Section 4975 of the Code) in or to all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided provided, however, that (Ai) such participant is not a Disqualified Lender, (B) such LenderBuyer’s obligations under this Agreement shall remain unchanged, (Cii) such Lender Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) such Borrower, the Agents and the other Lenders Seller shall continue to deal solely and directly with such Lender Buyer in connection with such LenderBuyer’s rights and obligations under this Agreement and (E) each Participant shall have agreed the other Program Documents except as provided in Section 7. Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to be bound by this Section 13.06(c)18, Section 13.06(d)disclose to the assignee or participant or proposed assignee or participant, Section 13.06(e) and Section 13.17. Any agreement pursuant as the case may be, any information relating to which a Lender sells such a participation shall provide any Seller Party or to any aspect of the Transactions that such Lender shall retain the sole right has been furnished to enforce this Agreement and to approve any amendment, modification Buyer by or waiver on behalf of any provision of this AgreementSeller Party; provided that such agreement may provide that assignee or participant agrees to hold such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (information subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the confidentiality provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 Agreement and (B) no Participant shall be entitled any confidentiality provisions applicable to any amount under Section 2.10, 2.11, or 13.03 which is greater than of the amount the documents related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) thereto. In the event that any Lender sells participations in any Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubtAgreement, the Administrative Agent (parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed add agency provisions similar to those included in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerfor similar syndicated repurchase facilities.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) Each Lender mayPrior to the Closing, none of the parties hereto may assign this Agreement; provided, however, that, subject to Section 9.5, upon written notice to Seller given no later than ten (10) Business Days prior to the Closing, and with the prior written consent of the Administrative Agent and the BorrowerSeller which will not be unreasonably withheld or delayed, Buyers may assign their right to an assignee all or a acquire any portion of its rights the Assets and their obligations under to assume any portion of the Assumed Liabilities to one or more direct or indirect wholly-owned subsidiaries of Cott.
(b) After the Closing, neither Seller nor Cott nor the other Buyers hereto may assign this Agreement (including all without the prior written consent of Cott, in the case of an assignment by Seller, and Seller, in the case of an assignment by Cott or a portion of its outstanding Advances or interests therein owned by itany Buyer, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s which consent to any such assignment (A) shall will not be unreasonably withheld or delayed; provided, however, that the events described in (provided that i)-(iv) below shall be deemed to be a Lender may not make any such permitted assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if require consent:
(i) a change in control in or a merger by (either as the assignee is a Permitted Assignee with respect to such assignor; and
surviving or non-surviving entity) or sale of all or substantially all of the assets of either Cott or Seller, (ii) either Seller, on the Borrower’s consent one hand, and Cott and the Buyers, on the other hand, may assign all of its rights hereunder to any such assignment pursuant to this Section 13.06(aan institutional lender (meaning a commercial bank, insurance company, reputable commercial lender, investment bank or a trustee for holders of debt securities) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (connection with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein financing from such institutional lender without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lenderother, (Biii) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement Seller may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion assign all of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for hereunder to the Borrower shall maintain a register on which it enters the name and address purchaser of all participants or substantially all of the assets of the RC Domestic Business without the prior written consent of Cott, so long as in connection with any such assignment, Seller complies with the Advances held requirements of Section 11.4, any such buyer agrees to be bound by it the applicable provisions set forth in Section 11.4 and Seller remains jointly and severally liable for its obligations under Article VIII hereof and (iv) Cott and the principal amount applicable Buyer may assign all of (its rights and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except hereunder to the extent that such disclosure is necessary they relate solely to establish that such commitment, loan the RC International Assets to the purchaser of all or other obligation is in registered form under Section 5f.103-1(c) substantially all of the United States Treasury Regulations and Section 1.163-5(b) assets of the proposed United States Treasury Regulations. The entries RC International Business without the prior written consent of Seller so long as in a Participant Register shall be conclusive absent manifest errorconnection with any such assignment, and such Lender shall treat each Person whose name is recorded in such Participant Register as Cott complies with the owner requirements of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in11.4, any of its Advances or its Individual Lender Maximum Funding Amount such buyer agrees to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained applicable provisions set forth in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower 11.4 and (D) any such representations or agreements shall run to the benefit of Cott remains jointly and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of severally liable for its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretounder Article VIII hereof.
Appears in 1 contract
Assignability. (a) This Agreement and each Conduit Lender's rights and obligations herein (including the outstanding Advances) shall be assignable by such Conduit Lender to an Eligible Assignee; provided, that without the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed and which consent shall, in any event not be required if an Event of Default shall have occurred and be continuing) such Conduit Lender shall not assign its obligations under this Agreement to any Person other than to a U.S. Affiliate which is a special purpose entity that issues commercial paper. Each such assignor shall notify the Program Agent and the Borrower of any such assignment. Each such assignor may, in connection with the assignment or participation, disclose to the assignee or participant any information relating to the Borrower, including the Pledged Collateral, furnished to such assignor by or on behalf of the Borrower or by the Program Agent; provided that, prior to any such disclosure, the assignee or participant agrees to preserve the confidentiality of any confidential information relating to the Borrower received by it from any of the foregoing entities. Notwithstanding the foregoing, without the consent of the Borrower, the Conduit Lenders may, pursuant to the Asset Purchase Agreement or otherwise, sell, assign, transfer and convey all or any portion of the Advances maintained by the Conduit Lenders, together with all rights hereunder and under the Program Documents in respect thereof, to any bank or financial institution which is also a Secondary Lender of such Conduit Lender.
(b) Each Secondary Lender may, with the consent of the Administrative Agent Borrower (which consent shall not be unreasonably withheld or delayed and the Borrowerwhich consent shall, in any event, not be required if an Event of Default shall have occurred and be continuing), assign to an assignee any Eligible Assignee or to any other Secondary Lender all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Secondary Lender Commitment and the outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of provided, that the Borrower’s and the Administrative Agent’s 's consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is an existing Secondary Lender or a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) U.S. Affiliate of an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Lawexisting Secondary Lender. The parties to each such assignment shall execute and deliver to the Administrative Program Agent (with a copy to the Collateral Agent) an Assignment and Acceptance Acceptance. Notwithstanding the foregoing, each Secondary Lender may assign or pledge or grant a security interest in any or all of its rights (including, without limitation, rights to payment of principal and Yield on the Advances) under this Agreement to any Federal Reserve Bank without notice to or consent of the Borrower.
(c) Each Direct Lender may, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed and which consent shall, in any event, not be required if an Event of Default shall have occurred and be continuing), assign to any Eligible Assignee or to any existing Secondary Lender or Direct Lender all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Direct Lender Commitment and the applicable tax forms outstanding Advances or interests therein owned by it); provided, that the Borrower's consent to any such assignment shall not be required by Section 13.03(g)if the assignee is an existing Direct Lender, Secondary Lender or a U.S. Affiliate of an existing Direct Lender or Secondary Lender. The parties to each such assignment shall execute and deliver to the Program Agent a Direct Lender Assignment and Acceptance. Notwithstanding the foregoing, each Direct Lender may assign or pledge or grant a security interest in any other provision or all of its rights (including, without limitation, rights to payment of principal and Yield on the Advances) under this Section 13.06Agreement to any Federal Reserve Bank without notice to or consent of the Borrower.
(d) The Program Agent may, no assignment by any Lender to with the consent of the Borrower (which consent shall not be unreasonably withheld or any of its Affiliates or any Disqualified Institution (except delayed and which consent shall not be required if an Event of Default has occurred and is continuing) ), assign this Agreement and its rights and obligations hereunder; provided, that the Borrower's consent to any such assignment shall not be permittedrequired if the assignee is a U.S. Affiliate of the Program Agent.
(be) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Program Agent and the Direct Lenders.
(if) Any Lender mayThe Borrower acknowledges and agrees that each Lender's (other than a Conduit Lender), without the consent ofeach Secondary Lender's and each Direct Lender's source of funds may derive in part from its participants. Accordingly, but with notice toreferences in Sections, the Borrower2.07, sell participations to Participants in all or a portion of such Lender’s rights 2.08, 2.09, 9.03 and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents 9.04 and the other Lenders shall continue to deal solely terms and directly with such Lender in connection with such Lender’s rights and obligations under provisions of this Agreement and (E) each Participant shall have agreed the other Program Documents to be bound by this Section 13.06(c)rates, Section 13.06(d)determinations, Section 13.06(e) reserve and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain capital adequacy requirements, expenses, increased costs, reduced receipts and the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant like as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject they pertain to the requirements Lender, the Secondary Lenders and limitations set forth in Section 13.03the Direct Lenders shall be deemed also to include those of each of its participants; provided, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant participant shall be entitled to any amount under Section 2.10any such Sections or provisions, 2.11, or 13.03 which is greater than the amount the related Lender, Secondary Lender or Direct Lender, as the case may be, would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dg) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, Program Agent shall maintain at its address specified in Section 13.02 9.02 or such other address as the Administrative Program Agent shall designate in writing to the its related Lenders, Secondary Lenders and Direct Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance or Direct Lender Assignment and Acceptance delivered to and accepted by it and a register (the “"Register”") for the recordation of the names and addresses of such Secondary Lenders, their Secondary Lender Commitments, the Lenders Direct Lenders, their Direct Lender Commitments, effective dates and Stated Expiration Dates, and the aggregate outstanding principal amount of the outstanding Advances maintained made by each such Secondary Lender or Direct Lender under this Agreement (and any stated interest thereon)Agreement. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Program Agent, the Secondary Lenders and the Direct Lenders shall may treat each Person whose name is recorded in the Register as a Secondary Lender or a Direct Lender, as the case may be, as a Secondary Lender or Direct Lender, as applicable, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Secondary Lender or any Direct Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Van Kampen Senior Loan Fund)
Assignability. (a) Each Lender may, with This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the Administrative Agent GGP and the BorrowerSpinco, except that each Party may:
(i) assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion to any of its outstanding Advances Subsidiaries; provided, that no such assignment shall release GGP or interests therein owned by itSpinco, together as the case may be, from any liability or obligation under this Agreement;
(ii) in connection with ratable portions the divestiture of any Subsidiary or business of Spinco to an acquiror that is not a Competitor of GGP, assign to the acquiror of such Subsidiary or business its Individual Lender Maximum Funding Amount)rights and obligations as a recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided that:
provided, that (i) no such assignment shall release GGP or Spinco, as the case may be, from any liability or obligation under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, and (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Annexes and Schedules to this Agreement, that may be necessary or appropriate in order to assign such Services; and
(iii) in connection with the divestiture of any Subsidiary or business of Spinco to an acquiror that is a Competitor of GGP, assign to the acquiror of such Subsidiary or business its rights and obligations as a recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided, that (i) no such assignment shall release GGP or Spinco, as the case may be, from any liability or obligation under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Annexes and Schedules to this Agreement, that may be necessary or appropriate in order to ensure that such assignment will not (x) materially and adversely affect the businesses and operations of each of the Borrower’s Parties and the Administrative Agent’s consent their respective Subsidiaries or (y) create a competitive disadvantage for GGP with respect to any such assignment an acquiror that is a Competitor of GGP, and (Aiv) GGP shall not be unreasonably withheld or delayed; (provided that a Lender may not make obligated to provide any such assignment pursuant assigned Services to this clause (i)(A) to an acquiror that is a Disqualified Institution) and (B) shall not be required Competitor of GGP if the assignee is provision of such assigned Services to such acquiror would disrupt the operation of such GGP’s businesses or create a Permitted Assignee competitive disadvantage for such GGP with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedacquiror.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without In the prior written consent event of the Agents and the Lenders.
(i) Any Lender maymerger, without amalgamation or consolidation of Spinco and another Person, (ii) sale of all or substantially all of the consent assets of Spinco to another Person, (iii) the acquisition of a majority of the voting stock of Spinco by any Person or “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) or (iv) the election of, but with notice or appointment to, the Borrowerboard of directors of Spinco of directors constituting a majority of the directors then serving if such elected or appointed directors have not been nominated as directors by the Nominating Committee of the board of directors prior to their election or appointment, sell participations then the requirement of GGP to Participants in all or a portion provide Services hereunder shall automatically terminate without further action by the Parties thirty (30) days after the occurrence of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationevent.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) [Reserved].
(b) Each Lender may, with the consent of the Administrative Agent and the Borrower, Bank may assign to an assignee any Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its outstanding Advances Bank Commitment and any Receivable Interests or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided provided, however, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement;
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance Agreement with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than the lesser of (x) an Event of Default shall have occurred ($5,000,000 and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required all of the assigning Bank’s Bank Commitment, provided that all concurrent assignments to Related Funds will be treated as a result single assignment for purposes of any Change in Law. The determining whether such minimum amount has been met; and
(iii) the parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to Agent, for its acceptance and recording in the Collateral Agent) Register, an Assignment and Acceptance Agreement, together with a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of a Bank hereunder and (y) the assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(c) The Agent shall maintain at its address referred to in Section 10.02 of this Agreement a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of (i) the names and addresses of the Banks and (ii) the Bank Commitment of, and aggregate outstanding Capital of Receivable Interests or interests therein owned by, each Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes regarding the ownership of the Receivable Interests, absent manifest error, and the applicable Seller, the Originators, the Agent and the Banks shall treat each person whose name is recorded in the Register as the owner of a Receivable Interests and as a Bank under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Seller or any Bank at any reasonable time and from time to time upon reasonable prior notice. The parties hereto intend that the Register will satisfy the requirement that indebtedness for U.S. federal income tax forms required purposes represented by Section 13.03(g)the Receivable Interests be in "registered form" as such term is used for purposes of portfolio interest under sections 881(c) and 163(f) of the Code and the regulations promulgated thereunder. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Bank and an Eligible Assignee, the Agent shall, if such Assignment and Acceptance Agreement has been completed, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Seller.
(d) Notwithstanding any other provision of this Section 13.0610.03, any Bank may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of Capital and Yield) under this Agreement (i) to secure obligations of such Bank to a Federal Reserve Bank or (ii) to any holder or trustee of such Bank's securities, without notice to or consent of the Seller or the Agent; provided that no assignment by any Lender to the Borrower such pledge or grant of a security interest shall release a Bank from any of its Affiliates obligations hereunder or substitute any Disqualified Institution such pledgee or grantee for such Bank as a party hereto.
(except if e) Each Bank may sell participations, to one or more banks or other entities (each such bank or entity, a “Participant”), in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Bank Commitment and the Receivable Interests or interests therein owned by it); provided, however, that
(i) such Bank’s obligations under this Agreement (including, without limitation, its Bank Commitment to the Seller hereunder) shall remain unchanged, and
(ii) such Bank shall remain solely responsible to the other parties to this Agreement for the performance of such obligations. The Agent, the other Banks, the Seller and the Servicer shall have the right to continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement.
(f) The rights and obligations of the Agent herein shall be assignable by the Agent and its successors and assigns; provided, however, that the Agent agrees that it will not assign such rights and obligations to any Person other than an Affiliate of Citibank unless:
(i) in the reasonable judgment of the Agent, the Agent determines that continued service by it (or its Affiliate) as Agent hereunder would be inconsistent with, or otherwise materially disadvantageous under, applicable legal, tax or regulatory restrictions; or
(ii) an Event of Default has Termination or Incipient Event of Termination shall have occurred and is be continuing; or
(iii) the Seller shall have consented to such assignment (such consent not to be permittedunreasonably withheld or delayed).
(bg) Borrower The Seller may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsBank.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Receivables Purchase Agreement (AbitibiBowater Inc.)
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (such consent not to be unreasonably withheld, conditioned or delayed), assign to an assignee any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee Lender or any of its Affiliates with respect prior written notice by such assigning Lender to such assignor; andthe Administrative Agent;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (xA) an Event of Default shall have occurred and be continuing, (and not been waived by B) the Lenders in accordance with Section 13.01assignee is (x) a Lender or (y) any of its Affiliates; provided that the Borrower shall be deemed to have consented to any such assignment is required as unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;
(iii) notwithstanding anything herein to the contrary, each Lender may make an assignment to any Person with notice to, but without the consent of, the Administrative Agent or the Borrower if such Lender makes a result reasonable determination that its ownership of any Change in of its rights or obligations hereunder is prohibited by Applicable Law; and
(iv) for Assignments, including to other Lenders or their Affiliates, a transfer fee of $3,500 shall be paid to ING. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of ING Capital LLC). Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 13.03(g12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement, and to the extent of the interest assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender may be made to the Borrower Borrower, the Servicer, the Equityholder or any of its their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Disqualified Institution Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (except if an Event of Default has occurred and is continuing) shall be permittedy).
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(ic) Any Lender may, without the consent of, but with notice to, the Borrower, may sell participations to Participants in all or a portion of such Lender’s rights and obligations under this AgreementAgreement and the other Facility Documents (including all or a portion of its Commitments and the Advances owing to it); provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement and the other Facility Documents shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Facility Documents, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Facility Documents and to approve any amendment, modification or waiver of any provision of this Agreement; provided Agreement and the other Facility Documents. The Borrower agrees that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant shall be entitled to the benefits of Sections 2.09 and 12.03 (subject to the requirements and limitations therein, including the requirements under Section 12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Section; provided that such Participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 2.09 or 12.03, 2.11with respect to any participation, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.20 with respect to any Participant.
(iid) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no . An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other rights and obligations under any Facility Documenthereunder) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is rights and obligations are in registered form under Section 5f.103-1(c) 1 of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(de) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and Agreement, each signature page hereto and hereto, each Assignment and Acceptance delivered to and accepted by it it, and a register (the “Register”) for the recordation of the names names, addresses and addresses wiring instructions of the Lenders and the aggregate outstanding principal amount of the outstanding Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Servicer, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of this Agreementthe Facility Documents. The Register shall be available for inspection by the Borrower Borrower, the Servicer, the Collateral Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each NoteNote with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts12.06.
(ef) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, Document and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3), and (7) of Rule 501(a) under the Securities Act (an “Accredited Investor”) and a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender severally represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerPurchaser.
(fg) Notwithstanding any other provision of this Section 13.0612.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Credit and Security Agreement (FIDUS INVESTMENT Corp)
Assignability. (a) Each Lender mayThis Agreement and the Investors' rights and obligations herein (including ownership of each Receivable Interest) shall be assignable by the Investors and their successors and assigns (including, without limitation, pursuant to an Asset Purchase Agreement) with the Seller's consent, which shall not be unreasonably withheld or delayed, PROVIDED, that the Seller's consent shall not be required (i) if the assignment shall be to an Eligible Assignee, unless, as a direct result thereof, the Seller would incur obligations to make payments pursuant to Section 2.08 or 2.10 which are in excess of any such obligations then payable by the Administrative Seller to the assigning party, or (ii) if there shall have occurred and be continuing an Event of Termination or an Incipient Bankruptcy Event of Termination. Each assignor of a Receivable Interest or any interest therein shall notify the Program Agent, its Investor Agent and the BorrowerSeller of any such assignment. Each assignor of a Receivable Interest or any interest therein may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Seller, the Parent or any other Originator, including the Receivables, furnished to such assignor by or on behalf of the Seller, the Parent, any other Originator or by the Program Agent; provided that, prior to any such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof.
(b) Each Bank may assign to an assignee any Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its outstanding Advances Bank Commitment and any Receivable Interests or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided PROVIDED, HOWEVER, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance Agreement with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than the lesser of (x) an Event of Default shall have occurred ($10,000,000 and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result all of any Change in Law. The the assigning Bank's Bank Commitment,
(iii) the parties to each such assignment shall execute and deliver to the Administrative Program Agent (with a copy to the Collateral assignor's Investor Agent) ), for its acceptance and recording in the Register, an Assignment and Acceptance Agreement, together with a processing and recordation fee of $2,500, and
(iv) concurrently with such assignment, such assignor Bank shall assign to such assignee Bank or other Eligible Assignee an equal percentage of its rights and obligations under its Asset Purchase Agreement (or, if such assignor Bank is Citibank, it shall arrange for such assignee Bank or other Eligible Assignee to become a party to its Asset Purchase Agreement for a maximum Capital amount equal to the applicable tax forms required by Section 13.03(gassignee's Bank Commitment). Notwithstanding any other provision of Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Section 13.06Agreement and, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred extent that rights and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the prior written consent rights and obligations of a Bank hereunder and (y) the Agents assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish such rights and be released from such obligations under this Agreement (and, in the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in case of an Assignment and Acceptance Agreement covering all or a the remaining portion of such Lender’s an assigning Bank's rights and obligations under this Agreement; provided that (A) , such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement Bank shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed cease to be bound by this Section 13.06(ca party hereto), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dc) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, Program Agent shall maintain at its address specified referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, 11.02 of this Agreement a copy of this Agreement and each signature page hereto and each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders Banks and the Bank Commitment of, and aggregate outstanding principal amount Capital of Receivable Interests or interests therein owned by, each Bank from time to time (the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerSeller, the Agents Originators, the Program Agent, the Investor Agents, the Investors and the Lenders shall Banks may treat each Person person whose name is recorded in the Register as a Lender hereunder Bank under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Seller or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice. An Advance (Upon its receipt of an Assignment and a NoteAcceptance Agreement executed by an assigning Bank and an Eligible Assignee, the Program Agent shall, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (Assignment and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the BorrowerAcceptance Agreement has been completed, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an accept such Assignment and Acceptance) and Acceptance Agreement, (ii) on record the information contained therein in the Register and (iii) give prompt notice thereof to the Seller.
(d) In addition to assignments pursuant to Section 11.03(b), each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, Bank or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to Affiliates may assign any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of principal Capital and interestYield) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, Bank without notice to or consent of the Borrower Seller or the Administrative Program Agent; provided that no such pledge .
(e) Each Bank may sell participations, to one or grant of more banks or other entities which are Eligible Assignees, in or to all or a security interest shall release such Lender from any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Bank Commitment and the Receivable Interests or interests therein owned by it); PROVIDED, HOWEVER, that
(i) such Bank's obligations under this Agreement (including, without limitation, its Bank Commitment to the Seller hereunder) shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties to this Agreement for the performance of such obligations, and
(iii) concurrently with such participation, the selling Bank shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under its Asset Purchase Agreement. The Agent, the other Banks and the Seller shall have the right to continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement.
(f) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns.
(g) The Seller may not assign its rights or obligations hereunder or substitute any interest herein without the prior written consent of the Program Agent and each Investor Agent.
(h) CAFCO may, without the consent of the Seller, sell participations to one or more banks or other entities (each, a "PARTICIPANT") in all or a portion of its rights and obligations hereunder (including the outstanding Receivable Interests); PROVIDED that following the sale of a participation under this Agreement (i) the obligations of CAFCO shall remain unchanged, (ii) CAFCO shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Seller, the Agent, and the Banks shall continue to deal solely and directly with CAFCO in connection with CAFCO's rights and obligations under this Agreement. Any agreement or instrument pursuant to which CAFCO sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; PROVIDED that such agreement or instrument may provide that CAFCO will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Capital or Yield that is payable on account of any Receivable Interest or delays any 70 scheduled date for payment thereof or (ii) reduces any fees payable by the Seller to the Program Agent or CAFCO's Investor Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Seller acknowledges and agrees that CAFCO's source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 11.04 and the other terms and provisions of this Agreement and the other Transaction Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to CAFCO shall be deemed also to include those of its Participants; PROVIDED that the Seller shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Seller in the absence of the sale of any participation by CAFCO to a Participant as contemplated by this Section 11.03(h). CAFCO or the Agent may, in connection with any such pledgee participation, disclose to Participants and potential Participants any information relating to the Seller, the Parent or grantee the other Originators, including the Receivables, furnished to CAFCO or the Agent by or on behalf of the Seller; PROVIDED that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. Any interest sold by CAFCO to a Bank or its designee under its Asset Purchase Agreement shall not be considered a participation for such Lender the purpose of this Section 11.03(h) (and the Bank or its designee shall not be considered a Participant as a party heretoresult thereof).
Appears in 1 contract
Assignability. (a) Each Lender mayThis Agreement and the Issuer’s rights and obligations herein (including ownership of the Purchased Interest or an interest therein) shall be assignable, in whole or in part, by the Issuer and its successors and assigns with the prior written consent of the Administrative Agent and the BorrowerSeller; provided, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by ithowever, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s that such consent to any such assignment (A) shall not be unreasonably withheld or delayedwithheld; (and provided further, that a Lender may not make any no such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) consent shall not be required if the assignment is made to any Affiliate of PNC (other than a director or officer of PNC) or any Person that is administered by PNC or any Affiliate of PNC. Each assignor may, in connection with the assignment, disclose to the applicable assignee is a Permitted Assignee with respect (that shall have agreed to be bound by Section 5.6) any information relating to the Servicer, the Seller or the Pool Receivables furnished to such assignor; and
assignor by or on behalf of the Servicer, the Seller, the Issuer or the Administrator. The Administrator shall give prior written notice of any assignment of the Issuer’s rights and obligations (ii) including ownership of the Borrower’s consent Purchased Interest to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(gPerson). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower [Reserved].
(c) This Agreement and the rights and obligations of the Administrator hereunder shall be assignable, in whole or in part, by the Administrator and its successors and assigns; provided, that unless: (i) such assignment is to an Affiliate of PNC, (ii) it becomes unlawful for PNC to serve as the Administrator or (iii) a Termination Event exists, the Seller has consented to such assignment, which consent shall not be unreasonably withheld.
(d) Except as provided in Section 4.1(d), none of the Seller, UGI or the Servicer may not assign its rights or delegate its obligations hereunder or any interest herein without the prior written consent of the Agents and the LendersAdministrator.
(ie) Any Lender may, without the consent of, but with notice toWithout limiting any other rights that may be available under applicable law, the Borrower, sell participations to Participants in all rights of the Issuer may be enforced through it or a portion by its agents.
(f) Each of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lenderthe Issuer, (B) such Lender’s obligations under this Agreement shall remain unchanged, its successors and assigns and (C) any assignee under Section 5.3(a) that, in each case, is not a United States Person (as such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth term is defined in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c7701(a)(30) of the United States Treasury Regulations and Section 1.163-5(bInternal Revenue Code of 1986, as amended) of the proposed for United States Treasury Regulations. The entries in a Participant Register federal tax purposes shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice deliver to the contrary. For the avoidance of doubtSeller, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining with a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing copy to the LendersServicer, a copy United States Internal Revenue Service Form W-8BEN or W-8ECI (or successor form) properly completed and certifying in each case that the party delivering such form is entitled to a complete exemption from withholding or deduction for or on account of this Agreement and each signature page hereto and each Assignment and Acceptance delivered any United States federal income taxes with respect to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries amounts derived, directly or indirectly, in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of connection with this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a NoteIssuer, if anyrequired to deliver such form, evidencing shall deliver such form on the sameClosing Date. A party described in the foregoing clauses (B) may be assigned or sold (C) shall deliver such form concurrently with such party becoming described in whole or in part only by registration any of such assignment or sale on clauses. Each party obligated to deliver a form under the Register (and each Note, if any, shall expressly so provide) and compliance with first sentence of this Section 13.06. The Administrative Agent shall update and furnish 5.3(f) shall, to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything extent permitted by law, further deliver to the contrary set forth herein or in any other Facility DocumentSeller, each Lender hereunder, and each Participant, must at all times be with a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents copy to the BorrowerServicer, a United States Internal Revenue Service Form W-8BEN or W-8ECI (ior successor form) on or before the date that it any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by such party to the Seller, properly completed and certifying in each case that the party delivering such form is entitled to a complete exemption from withholding or deduction for or on account of any United States federal income taxes with respect to amounts derived, directly or indirectly, in connection with this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIBAgreement. Each Lender further agrees that it The Seller shall not assign, be required to pay to or grant on behalf of any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless party described in the foregoing clauses (A) through (C) any additional amount under Section 1.8 or Section 3.1 attributable to any tax, duty, levy or other charge of any kind whatsoever imposed upon or required to be withheld or deducted from payments to any such Person party if such party shall have represented and agreed in writing failed to satisfy the requirements of this Section 5.3(f); provided that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained nothing in this Section 13.06(e), (C5.3(f) a copy shall relieve the Seller of any obligation to pay additional amounts under Section 1.8 or Section 3.1 if, as a result of a change in treaty, law or regulation or the interpretation or application thereof, adopted, issued or occurring after the satisfaction by such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations party of such Lenderrequirements, including any pledge such party is no longer properly entitled to deliver Form W-8BEN or security interest granted Form W-8ECI (or successor forms) certifying that such party is entitled to a Federal Reserve Bankcomplete exemption from withholding or deduction for or on account of any United States federal income taxes with respect to amounts derived, without notice to directly or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoindirectly, in connection with this Agreement.
Appears in 1 contract
Assignability. (a) Each Any Conduit Lender may (i) with notice to the Borrower and the Servicer, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any 111 portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Conduit Lender’s sponsor or administrator bank if the Commercial Paper of such commercial paper conduit have short-term ratings from S&P and ▇▇▇▇▇’▇ that are equivalent to or higher than the short-term ratings by S&P and ▇▇▇▇▇’▇ of the Commercial Paper of such Conduit Lender, (C) any Affiliate of such Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Conduit Lender and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld or delayed) and the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any other Person not listed in clause (i) above. Any Managing Agent may, with notice to the Borrower, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Affiliate of such Managing Agent.
(b) Any Committed Lender may, with the consent of the Administrative Agent and and, if no Event of Default is continuing, the Borrower, Borrower (such consent not to be unreasonably withheld or delayed) assign to an assignee at any time all or a any portion of its rights and obligations under this Agreement hereunder and interests herein to any Person; provided, however, that notwithstanding the foregoing, no consent of the Borrower shall be required for any assignment is to a Lender or an Affiliate of a Lender other than a Conduit Lender.
(including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:c) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than $10,000,000, and
(xiii) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500.
(d) Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The Aggregate Loan Principal Balance (including stated interest) and any interests therein, and any Assignments and Acceptances of the Aggregate Loan Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment transfer of the Aggregate Loan Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Administrative Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of this Agreement. This Section 10.03(d) shall be construed so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code, solely for the purposes of this Section 10.03, the Administrative Agent will act as an agent of the Borrower. The Register shall be available for inspection by any Lender to the Borrower or any Managing Agent at any reasonable time and from time to time upon reasonable prior notice. 112
(e) Upon its receipt of its Affiliates or any Disqualified Institution an Assignment and Acceptance, the Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (except if an Event of Default has occurred i) accept such Assignment and is continuingAcceptance, (ii) shall be permittedrecord the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(if) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loan); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such the Borrower, the Agents Administrative Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Facility Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Facility Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10amendment, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by assignment pursuant to clause (a) of this Section 13.06 (subject the Borrower to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that Administrative Agent (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent relating to payments to the Participant) or delays any scheduled date for payment of such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event fees. The Borrower acknowledges and agrees that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ ▇’s source of funds may derive in part from its Participants. Accordingly, references in Sections 2.09 or 2.10 and the other terms and provisions of this Agreement and the other Facility Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as nonfiduciary agent for they pertain to the Lenders shall be deemed also to include those of its Participants; provided, however, that in no event shall the Borrower shall be liable to any Participant under Sections 2.09 or 2.10 for an amount in excess of that which would be payable to the applicable Lender under such sections. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of all participants each Participant and the aggregate principal balance (including stated interest) of each Participant’s interest in the Advances held by it and Loans or other obligations under the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation Facility Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any other information relating to a the Participant’s interest in any commitments, loans Commitments or its other obligations under any Facility DocumentLoans) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan Commitment or other obligation Loan is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dg) The Administrative Agent, on behalf Borrower may not assign any of and acting solely for this purpose as its rights or obligations hereunder or any interest herein without the nonfiduciary agent prior written consent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to and all the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsManaging Agents.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(fh) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided provided, that no such pledge or grant of a security interest shall (x) release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretohereto or (y) create any additional, or modify any existing, obligations of the Seller, the Borrower or the Servicer under this Agreement or any other Facility Document.
Appears in 1 contract
Sources: Receivables Loan Agreement (Hilton Grand Vacations Inc.)
Assignability. (a) Each Lender mayThe rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by Seller without the prior written consent of Buyer. Buyer may from time to time, with the consent of Seller prior to the Administrative Agent and the Borroweroccurrence of an Event of Default, assign to an assignee all or a portion of its rights and obligations under this Agreement and the Program Documents to any party, including, without limitation, any affiliate of Buyer, pursuant to an executed assignment and acceptance by Buyer and assignee (including “Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned; provided, however, the consent of Seller shall not be required after the occurrence of an Event of Default. Upon such assignment, (a) such assignee shall be a party hereto and to each Program Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Program Documents. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Unless otherwise stated in the Assignment and Acceptance, Seller shall continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller. Buyer may sell participations to one or more Persons in or to all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided provided, however, that (Ai) such participant is not a Disqualified Lender, (B) such LenderBuyer’s obligations under this Agreement shall remain unchanged, (Cii) such Lender Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) such Borrower, the Agents and the other Lenders Seller shall continue to deal solely and directly with such Lender Buyer in connection with such LenderBuyer’s rights and obligations under this Agreement and (E) each Participant shall have agreed the other Program Documents except as provided in Section 7. Subject to be bound by Section 31, Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 13.06(c)18, Section 13.06(d)disclose to the assignee or participant or proposed assignee or participant, Section 13.06(e) and Section 13.17. Any agreement pursuant as the case may be, any information relating to which a Lender sells such a participation shall provide Seller or any of its Subsidiaries or to any aspect of the Transactions that such Lender shall retain the sole right has been furnished to enforce this Agreement and to approve Buyer by or on behalf of Seller or any amendment, modification or waiver of any provision of this Agreementits Subsidiaries; provided that such agreement may provide that assignee or participant agrees to hold such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (information subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the confidentiality provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) Agreement. In the event that any Lender sells participations in any Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubtAgreement, the Administrative Agent (parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed add agency provisions similar to those included in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerfor similar syndicated repurchase facilities.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Master Repurchase Agreement (Walter Investment Management Corp)
Assignability. (a) Each Any Conduit Lender may, (i) with notice to the Borrower and the Servicer, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Conduit Lender’s sponsor or administrator bank if the Commercial Paper of such commercial paper conduit have short-term ratings from S&P and ▇▇▇▇▇’▇ that are equivalent to or higher than the short-term ratings by S&P and ▇▇▇▇▇’▇ of the Commercial Paper of such Conduit Lender, (C) any Affiliate of such Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Conduit Lender and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any other Person not listed in clause (i) above. Any Managing Agent may, with notice to the Borrower and the Servicer, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Affiliate of such Managing Agent.
(b) Any Committed Lender may, with the consent of the Administrative Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and with the consent of the Managing Agent and for the BorrowerLender Group of which it is a member, assign to an assignee at any time all or a any portion of its rights and obligations under this Agreement hereunder and interests herein to any Person; provided, however, that the consent of the Borrower shall not be required in connection with any assignment by a Committed Lender (including all i) after the occurrence and during the continuance of an Event of Termination or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:(ii) to any other Lender.
(c) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than $10,000,000, and
(xiii) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Program Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500.
(d) Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). At all times during which any Loan is outstanding, the Program Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Program Agent notified by the Program Agent to the other parties hereto) a register as provided herein (the “Register”). The Outstanding Loan Amount and any interests therein, and any Assignments and Acceptances of the Outstanding Loan Amount or any interest therein delivered to and accepted by the Program Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Outstanding Loan Amounts and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment transfer of the Outstanding Loan Amounts or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Program Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of this Agreement. This Section 10.03(d) shall be construed so that the Outstanding Loan Amount and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the IRC, solely for the purposes of this Section 10.03, the Program Agent will act as an agent of the Borrower. The Register shall be available for inspection by any Lender to the Borrower or any of its Affiliates or Managing Agent at any Disqualified Institution (except if an Event of Default has occurred reasonable time and is continuing) shall be permittedfrom time to time upon reasonable prior notice.
(be) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior written consent of Program Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the Agents information contained therein in the Register and (iii) give prompt notice thereof to the LendersBorrower.
(if) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loan); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such the Borrower, the Agents Program Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Facility Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Facility Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10amendment, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by assignment pursuant to clause (a) of this Section 13.06 (subject the Borrower to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that Program Agent (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent relating to payments to the Participant) or delays any scheduled date for payment of such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event fees. The Borrower acknowledges and agrees that any Lender sells participations Lender’s source of funds may derive in any portion of part from its rights and obligations hereunderParticipants. Accordingly, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants references in the Advances held by it Sections 2.12 or 2.14 and the principal amount of (other terms and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy provisions of this Agreement and each signature page hereto the other Facility Documents to determinations, reserve and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders capital adequacy requirements, expenses, increased costs, reduced receipts and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and like as they pertain to the Lenders shall treat each Person whose name is recorded be deemed also to include those of its Participants; provided, however, that in the Register as a Lender hereunder for all purposes of this Agreement. The Register no event shall be available for inspection by the Borrower be liable to any Participant under Sections 2.12 or 2.14 for an amount in excess of that which would be payable to the applicable Lender under such sections.
(g) Neither the Borrower nor the Servicer may assign any of its rights or obligations hereunder or any Lender at any reasonable time and from time to time upon reasonable interest herein without the prior notice. An Advance (and a Note, if any, evidencing written consent of the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Program Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsMajority Managing Agents.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(fh) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Program Agent; provided provided, that no such pledge or grant of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Loan and Servicing Agreement (DriveTime Automotive, Inc.)
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent Borrower (such consent not to be unreasonably withheld, conditioned or delayed) and the BorrowerAdministrative Agent, assign to an assignee any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have objected in writing within five (5) Business Days of receipt of any such request for consent; provided, further, that:
(i) each of neither the Borrower’s and nor the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is (A) a Permitted Assignee with respect to such assignor; andLender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (x) an Event of Default shall have occurred and be continuing; provided that in no event shall an assignment be made to a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (and not been waived by the Lenders in accordance with Section 13.01a), clause (b) or clause (yh) of Section 6.01 shall have occurred and be continuing; and
(iii) notwithstanding anything herein to the contrary, each Lender may make an assignment to any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such assignment is required as Lender makes a result reasonable determination that its ownership of any Change in of its rights or obligations hereunder is prohibited by Applicable Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of Citibank, N.A.). Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 13.03(g12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement, and to the extent of the interest USActive 55502425.1255502425.13 assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender may be made to the Borrower Borrower, the Collateral Manager, the Equityholder or any of its their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Disqualified Institution Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (except if an Event of Default has occurred and is continuing) shall be permittedy).
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(ic) Any Lender may, without with the consent ofof the Borrower (such consent not to be unreasonably withheld, but with notice to, delayed or conditioned) to the Borrowerextent such consent is required for an assignment under Section 12.06(a), sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided . The Borrower agrees that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant shall be entitled to the benefits of Sections 2.09 and 12.03 (subject to the requirements and limitations therein, including the requirements under Section 12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Section; provided that such Participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 2.09 or 12.03, 2.11with respect to any participation, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to that sells a participation agrees, at the Borrower’s request and expense, (i) on to use reasonable efforts to cooperate with the date that it becomes a party Borrower to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any effectuate the provisions of its Advances or its Individual Lender Maximum Funding Amount Section 2.20 with respect to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerParticipant.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Credit and Security Agreement (Blackstone Private Credit Fund)
Assignability. (a) The Borrower shall not have the right to assign this Credit Agreement or any interest therein except with the prior written consent of the Agent and the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to the Borrower.
(c) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (such consent not to be unreasonably withheld), but without the consent of any other Lender, assign to an assignee one or more banks or other financial institutions all or a portion of its rights and obligations under this Credit Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount)and the Revolving Notes; provided that:
that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (with a copy to the Collateral Agent) as defined below), an Assignment and Acceptance Assumption Agreement, together with any Revolving Note or Revolving Notes subject to such assignment and a processing and recordation fee of $2,500 and (ii) no such assignment shall be for less than $5,000,000 of the applicable tax forms required by Section 13.03(g)Commitments, unless such assignment is to a then-current holder of a Revolving Note. Notwithstanding any other provision Upon such execution and delivery of this Section 13.06, no assignment by any Lender the Assignment and Assumption Agreement to the Borrower or any of its Affiliates or any Disqualified Institution Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement (except if an Event of Default has occurred and is continuingthe "Acceptance Date"), (x) the assignee thereunder shall be permitted.
a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption Agreement, such assignee shall have the rights and obligations of a Lender hereunder and (by) Borrower may not assign the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights or (other than any rights it may have pursuant to Section 11.8 hereof which will survive) and be released from its obligations hereunder or any interest herein without under this DSN:54248.4 76 Agreement (and, in the prior written consent case of the Agents an Assignment and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in Assumption Agreement covering all or a the remaining portion of such an assigning Lender’s 's rights and obligations under this Credit Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed cease to be bound by this Section 13.06(ca party hereto), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative By executing and delivering an Assignment and Assumption Agreement, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Assumption Agreement, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Revolving Notes or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Credit Parties or the performance or observance by the Borrower or any other Credit Parties of any of its obligations under this Credit Agreement or any other instrument or document furnished pursuant hereto, (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the financial statements referred to in Section 7.1 hereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement, (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf of and acting solely for to exercise such powers under this purpose Credit Agreement as are delegated to the nonfiduciary agent Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the Borrower, obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender.
(e) The Agent shall maintain at its address specified referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, 11.5 hereof a copy of this Agreement and each signature page hereto and each Assignment and Acceptance Assumption Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding Commitments of, and principal amount of the outstanding Advances maintained by Loans owing to, each Lender under this Agreement from time to time (and any stated interest thereonthe "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Agent and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Assumption Agreement shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender, together with the Revolving Note or Revolving Notes subject to such assignment, the Agent shall, if such Assignment and Assumption Agreement has been completed and is in substantially the form of Exhibit I, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five (5) Business Days after its receipt of such notice, the Borrower shall DSN:54248.4 77 execute and deliver to the Agent in exchange for the surrendered Revolving Note or Revolving Notes a new Revolving Note or Revolving Notes to the order of the assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Revolving Note or Revolving Notes to the order of the assigning Lender in an amount equal to the Commitment or Commitments retained by it hereunder. Such new Revolving Note or Revolving Notes shall re-evidence the indebtedness outstanding under the old Revolving Note or Revolving Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Note or Revolving Notes, shall be dated the Closing Date and shall otherwise be in substantially the form of the Revolving Note or Revolving Notes subject to such assignments.
(g) Each Lender may sell participations (without the consent of the Agent, the Borrower or any other provision of this Section 13.06, any Lender may at any time pledge Lender) to one or grant a security interest more parties in or to all or any a portion of its rights and obligations under this Credit Agreement (including including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Revolving Note or Revolving Notes held by it); provided that (i) such Lender's obligations under this Credit Agreement (including, without limitation, its Commitments to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Revolving Note for all purposes of this Credit Agreement, (iv) the Borrower, the Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to payment approve any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal and interestof the Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) under except as otherwise expressly provided in this Agreement Credit Agreement, reduce the interest rate applicable to secure the Loans or Letter of Credit reimbursement obligations of in which such Lenderparticipant is participating, including or (D) except as otherwise expressly provided in this Credit Agreement, reduce any pledge or security interest granted to a Federal Reserve BankFees payable hereunder.
(h) Each Lender agrees that, without notice to or the prior written consent of the Borrower and the Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Revolving Note or other Obligation under the Administrative Agent; provided that no such pledge securities laws of the United States of America or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretojurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Di Giorgio Corp)
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have objected in writing within five (5) Business Days of receipt of any such request for consent; and provided, further, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law12.01). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(gSections 12.03(f) and 12.03(h), together with administrative details for the applicable assignee (if such assignee is not a current Lender). Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender to the Borrower or any of its Affiliates shall be permitted unless each Lender has been offered the opportunity to participate in any such assignment on a pro rata basis on the same terms, and (y) no assignment shall be made to any Defaulting Lender, or any Disqualified Institution Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (except if an Event of Default has occurred and is continuing) shall be permittedy).
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(c) i) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.09, 2.10, 2.11, and 13.03 12.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (Ax) such Participant agrees to be subject to the provisions of Section 13.03(gSections 2.16, 12.03(f) and 12.03(h) as if it were an assignee under clause (a) of this Section 13.06 and (By) no Participant shall be entitled to any amount under Section 2.09, 2.10, 2.11, or 13.03 12.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) Each Lender may, with the consent of the Administrative Agent The parties recognize and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided acknowledge that:
: (i) each Licensee’s performance hereunder will require, and the Company will rely upon, the exercise of the Borrower’s special creative skills, taste, personalities, industry standing and business acumen of the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayedpresent management and of those presently in control of Licensee; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the BorrowerCompany’s consent positive assessment, after extensive review, inquiry and investigation, of the creative skill, taste, personalities, industry standing and business acumen of Licensee’s present management and those presently in control of Licensee, specifically, J▇▇▇ ▇▇▇▇▇, has been a major factor in inducing the Company to enter into this Agreement, but for which assessment the Company could not have done so; (iii) the Company’s right to withhold approval of any and all Articles is an insufficient remedy to protect the Company from injury in the event performance hereunder were delegated to a third party who, in the Company’s judgment, did not possess all of the personal attributes described in subparagraphs (i) and (ii) of this paragraph, because the extensive exercise of such assignment pursuant right, if necessary to protect the prestige of the Licensed M▇▇▇, would frustrate the purpose of this Section 13.06(aAgreement and adversely affect the marketing and sale of other items of marked under the Licensed M▇▇▇; and (iii) the understanding and intent of the parties are that, under applicable law, this Agreement constitutes a personal service contract and that Licensee’s performance hereunder is non-delegable as a matter of law. In light of the foregoing and of the personal nature of Licensee’s performance hereunder, this Agreement shall not be required if (x) an Event of Default assigned by Licensee nor shall Licensee have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties right to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign sublicense its rights or obligations hereunder or any interest herein without hereunder, without, in either case, the prior written consent of the Agents and the Lenders.
(i) Any Lender mayCompany, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under except that Licensee may assign this Agreement; provided that (A) , in its entirety, to a company wholly owned and controlled by J▇▇▇ H▇▇▇▇, for such participant time such company is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents wholly owned and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound controlled by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such J▇▇▇ ▇▇▇▇▇▇ . The Company agrees to consider, in good faith, a request by Licensee for such consent; provided, however, that in light of, inter alia, the subjective nature of Licensee’s personal attributes upon which the Company will rely hereunder as nonfiduciary agent for described above, the Borrower Company shall maintain a register on which it enters have the name sole discretion to refuse such request. For the purpose of this Paragraph 19.6 (and address of all participants in addition to any direct assignment), any direct or indirect sale or transfer, or successive sales or transfers in the Advances held by it and the principal amount aggregate, of (and stated interest on) of the that portion of the Advance capital stock (or interests therein) of Licensee or the voting rights of such capital stock, or any merger, consolidation or similar combination entered into by Licensee or any parent corporation that limits or reduces the rights or abilities of current owners of Licensee to control the business and affairs of Licensee shall constitute an assignment of Licensee’s rights under this Agreement which is requires the subject prior written consent of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all Company. Any purported assignment, sublicense or any portion transfer in violation of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register this Paragraph 19.6 shall be conclusive absent manifest error, void and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrowereffect, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy be an event of default under this Agreement and each signature page hereto and each Assignment and Acceptance delivered shall give the Company the right to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of terminate this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) Each Lender may, with The rights and obligations of the parties under this Repurchase Agreement and under any Transaction shall not be assigned by the Seller without the prior written consent of Buyer. Subject to the Administrative Agent foregoing, this Repurchase Agreement and any Transactions shall be binding upon and shall inure to the Borrowerbenefit of the parties and their respective successors and assigns. Nothing in this Repurchase Agreement express or implied, shall give to any Person, other than the parties to this Repurchase Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Repurchase Agreement. Buyer may from time to time assign to an assignee all or a portion of its rights and obligations under this Repurchase Agreement and the Facility Documents; pursuant to an executed assignment and acceptance by Buyer and assignee (including "Assignment and Acceptance"), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, the Seller shall continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller. The Buyer may sell participations to one or more Persons in or to all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Repurchase Agreement; provided provided, however, that (Ai) such participant is not a Disqualified Lender, (B) such Lender’s the Buyer's obligations under this Repurchase Agreement shall remain unchanged, (Cii) such Lender the Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) such Borrower, the Agents and the other Lenders Seller shall continue to deal solely and directly with such Lender the Buyer in connection with such Lender’s the Buyer's rights and obligations under this Repurchase Agreement and (E) each Participant shall have agreed the other Facility Documents except as provided in Section 7. The Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to be bound by this Section 13.06(c)18, Section 13.06(d)disclose to the assignee or participant or proposed assignee or participant, Section 13.06(e) and Section 13.17. Any agreement pursuant as the case may be, any information relating to which a Lender sells such a participation shall provide the Seller or any of its Subsidiaries or to any aspect of the Transactions that such Lender shall retain has been furnished to the sole right to enforce this Agreement and to approve Buyer by or on behalf of the Seller or any amendment, modification or waiver of any provision of this Agreementits Subsidiaries; provided that such agreement may provide that assignee or participant agrees to hold such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (information subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the confidentiality provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) Repurchase Agreement. In the event that any Lender sells participations in any the Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubtRepurchase Agreement, the Administrative Agent (parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Repurchase Agreement to secure obligations of such Lender, including any pledge or security interest granted add agency provisions similar to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee those included in repurchase agreements for such Lender as a party heretosimilar syndicated repurchase facilities.
Appears in 1 contract
Sources: Master Repurchase Agreement (Anthracite Capital Inc)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (Ax) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (By) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a16.06(a) shall not be required if (x) an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law16.01). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g16.03(g). Notwithstanding any other provision of this Section 13.0616.06, (A) no assignment by any Lender to the Borrower Borrower, the Parent, the Collateral Manager or any of its their respective Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 permitted and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
(a) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such ▇▇▇▇▇▇’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 16.06(c), Section 16.06(d), Section 16.06(e) and Section 16.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.17 with respect to any Participant. Sections 2.09, 2.10, and 16.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section (subject to the requirements and limitations set forth in Section 16.03, including the requirements under Section 16.03(g)); provided that (1) such Participant agrees to be subject to the provisions of Section 16.06 as if it were an assignee under clause (a) of this Section 16.06 and (2) no Participant shall be entitled to any amount under Section 2.09, 2.10, or 16.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Main Street Capital CORP)
Assignability. (a) Each Any Conduit Lender may, (i) with notice to the Borrower and the Servicer, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Conduit Lender’s sponsor or administrator bank if the Promissory Notes of such commercial paper conduit have short-term ratings from S&P and Moody’s that are equivalent to or higher than the short-term ratings by S&P and Moody’s of the Promissory Notes of such Conduit Lender, (C) any Affiliate of such Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Conduit Lender and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any other Person not listed in clause (i) above. Any Managing Agent may, with notice to the Borrower and the Servicer, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Affiliate of such Managing Agent.
(b) Any Committed Lender may, with the consent of the Administrative Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and with the consent of the Managing Agent and for the BorrowerLender Group of which it is a member, assign to an assignee at any time all or a any portion of its rights and obligations under this Agreement hereunder and interests herein to any Person; provided, however, that the consent of the Borrower shall not be required in connection with any assignment by a Committed Lender (including all i) after the occurrence of an Event of Termination or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:(ii) to any other Lender.
(c) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than $10,000,000, and
(xiii) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(d) At all times during which any Loan is outstanding, the Program Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Program Agent notified by the Program Agent to the other parties hereto) a register as provided herein (the “Register”). The Aggregate Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Principal Balance or any interest therein delivered to and accepted by the Program Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment transfer of the Aggregate Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Program Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of this Agreement. This Section 10.03(d) shall be construed so that the Aggregate Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the IRC, solely for the purposes of this Section 10.03, the Program Agent will act as an agent of the Borrower. The Register shall be available for inspection by any Lender to the Borrower or any of its Affiliates or Managing Agent at any Disqualified Institution (except if an Event of Default has occurred reasonable time and is continuing) shall be permittedfrom time to time upon reasonable prior notice.
(be) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior written consent of Program Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the Agents information contained therein in the Register and (iii) give prompt notice thereof to the LendersBorrower.
(if) Any Lender may, without the consent of, but with notice to, of the Borrower, sell participations to Participants one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loan); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such the Borrower, the Agents Program Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Facility Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Facility Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10amendment, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by assignment pursuant to clause (a) of this Section 13.06 (subject the Borrower to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that Program Agent (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent relating to payments to the Participant) or delays any scheduled date for payment of such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event fees. The Borrower acknowledges and agrees that any Lender sells participations Lender’s source of funds may derive in any portion of part from its rights and obligations hereunderParticipants. Accordingly, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants references in the Advances held by it Sections 2.12 or 2.14 and the principal amount of (other terms and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy provisions of this Agreement and each signature page hereto the other Facility Documents to determinations, reserve and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders capital adequacy requirements, expenses, increased costs, reduced receipts and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and like as they pertain to the Lenders shall treat each Person whose name is recorded be deemed also to include those of its Participants; provided, however, that in the Register as a Lender hereunder for all purposes of this Agreement. The Register no event shall be available for inspection by the Borrower be liable to any Participant under Sections 2.12 or 2.14 for an amount in excess of that which would be payable to the applicable Lender under such sections.
(g) Neither the Borrower nor the Servicer may assign any of its rights or obligations hereunder or any Lender at any reasonable time and from time to time upon reasonable interest herein without the prior notice. An Advance (and a Note, if any, evidencing written consent of the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Program Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsMajority Managing Agents.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(fh) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Program Agent; provided provided, that no such pledge or grant of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (in each case not to be unreasonably withheld or delayed), assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee and not a Prohibited Assignee with respect to such assignor; and;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.01);
(iii) or (y) the Borrower’s consent to any such assignment is shall not be required as if it becomes illegal for any Lender to hold Advances;
(iv) no assignment shall be made to a result natural person or any Prohibited Assignee; and
(v) no assignment shall be made to the Borrower or any of any Change in Lawits Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral AgentBorrower and the Custodian) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g) and (j), together with a processing and recordation fee of $2,500, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders. Notwithstanding any other provision of this Section 13.06, no assignment by any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its Affiliates obligations hereunder or substitute any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedsuch pledgee or grantee for such Lender as a party hereto.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(i) Any Lender may, without with the consent of, but with notice to, of the BorrowerBorrower (not to be unreasonably withheld or delayed), sell participations to Participants one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Sections 13.09(b) and 13.15 and (E) each Participant shall have a short term rating of at least “A-2/P2” by S&P and ▇▇▇▇▇’▇, respectively. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a participation agrees, at the Participant’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 13.06(f) with respect to any Participant. Sections 2.09, 2.10, 2.11, and 13.03 shall apply to each Participant (it being understood that the documentation required under Section 13.03(g) and (j) shall be delivered to the participating Lender and the Administrative Agent) as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.09, 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitmentsCommitments, loans Loans or its other obligations under any Facility Documentthis Agreement) to any Person except to the extent that such disclosure is necessary to establish that such commitmentCommitment, loan Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) 5 of the proposed Proposed United States Treasury Regulations. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in a the Participant Register shall be conclusive absent manifest or demonstrable error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest or demonstrable error, and the Borrower, the Agents Administrative Agent and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance in accordance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) Purchaser and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender and Participant represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender and each Participant further agrees and represents that it is the sole direct and indirect beneficial owner and holder of its Loans, Advances and Commitments (and all beneficial, economic and other interest therein); shall not hold such Loan, Advance or Commitment for the direct or indirect benefit of any other person; shall not directly or indirectly sell, transfer, convey, assign, or grant any participations in, or any direct or indirect beneficial, economic or other interest in any Loan or any of its Advances or its Individual Lender Maximum Funding Amount Commitment, directly or indirectly, in whole or in part, including without limitation, by pledge, hypothecation, on-loan, or derivative or similar transaction or contract, or enter into any other arrangement pursuant to which any other person shall be entitled to or receive a direct or indirect beneficial, economic or other interest therein or any payments made in respect thereof, to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at QIB. Notwithstanding anything to the time of contrary set forth herein or in any other Facility Document, each Lender and each Participant agrees: that if any such assignment representation or participationagreement is no longer accurate or has been breached, (B) such Person agrees it shall promptly notify the Borrower; that it will be bound by if the restrictions on contained Borrower determines or is notified that a Lender or a Participant is in this Section 13.06(e), (C) a copy breach of any such representations of the representations, acknowledgments or agreements shall have been furnished to herein, the Borrower may consider the relevant transaction to be null and (D) void and not given effect for any such representations or agreements shall run purpose hereunder; and to the benefit of and be enforceable by cooperate with the Borrower’s efforts to so treat such transaction.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or Borrower, any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) Lender shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17, and (E) such Participants are not Disqualified Lenders. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent Agent, the Collateral Administrator or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Amounts to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (OFS Capital Corp)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, APA Purchaser may assign to an assignee any Eligible Assignee (defined below) or to any other existing APA Purchaser all or a portion of its rights and obligations under this Asset Purchase Agreement (including including, without limitation, all or a portion of its outstanding Advances or interests therein Purchase Commitment and any Percentage Interests owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided PROVIDED, HOWEVER, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any varying, percentage of all of such assignment pursuant to APA Purchaser's rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAsset Purchase Agreement,
(ii) the Borrower’s consent to any such assignment amount of unused Maximum Purchase and/or Percentage Interest in the Purchased Note being assigned pursuant to this Section 13.06(aeach assignment shall in no event be less than the lesser of $10,000,000 and the assigning APA Purchaser's Maximum Purchase, and
(iii) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (Agent, for its acceptance and recording in the Register, an Assignment of Purchase Commitment in the form of Exhibit A attached hereto, together with a copy processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in the Assignment of Purchase Commitment, (x) the assignee thereunder shall be a party hereto and, to the Collateral Agentextent that rights and obligations hereunder have been assigned to it pursuant to this Asset Purchase Agreement, have the rights and obligations of an APA Purchaser hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to this Asset Purchase Agreement, relinquish its rights and be released from its obligations under this Asset Purchase Agreement (and, in the case of an Assignment assignment covering all or the remaining portion of an assigning APA Purchaser's rights and Acceptance and the applicable tax forms required by Section 13.03(gobligations under this Asset Purchase Agreement, such APA Purchaser shall cease to be a party hereto). Notwithstanding any other provision of this Section 13.06the foregoing, no assignment by any Lender hereunder shall be effective unless (i) the documents evidencing such assignment are satisfactory to ▇▇▇▇▇'▇ and S&P and (ii) the assignee has delivered to ▇▇▇▇▇'▇ and S&P an opinion of counsel to the Borrower or any assignee satisfactory to each of its Affiliates or any Disqualified Institution (except if an Event ▇▇▇▇▇'▇ and S&P stating that the obligations of Default has occurred the assignee under this Asset Purchase Agreement are the legal, valid and is continuing) shall be permittedbinding obligations of the assignee, enforceable against the assignee in accordance with their terms.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent For purposes of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice tothis Asset Purchase Agreement, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that term "ELIGIBLE ASSIGNEE" shall mean any Person which (A) such participant is not a Disqualified Lenderreasonably acceptable to the Agent, (B) such Lender’s obligations under this Agreement is approved by AFL which approval shall remain unchangednot be unreasonably withheld, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, either (Dx) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound has short-term debt rated at least "P-1" by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇'▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held "A-1+" by it S&P or (y) is acceptable to ▇▇▇▇▇'▇ and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower S&P and (D) any such representations or agreements shall run to the benefit executes an Assignment of and be enforceable by the BorrowerPurchase Commitment.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) Each The Lender may, with the consent of the Administrative Agent and the Borrower, may assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Commitment and Uncommitted Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in LawAssignee. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) Borrowers an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g8.03(f). Notwithstanding The Lender, acting solely for this purpose as a non-fiduciary agent of Borrowers, shall maintain a register on which it enters the name and address of each Lender assignee, and the principal amounts (and stated interest) of each Lender assignee’s interest in the rights and obligations under this Loan Agreement and related LoanFacility Documents (the “Register”). No assignment shall be effective unless recorded in the Register. Subject to notification to the Borrowers of an assignment and compliance with the terms of the Intercreditor Agreement, the assignee shall be a party hereto and, to the extent of the interest assigned, have the rights and obligations of the existing Lender under this Agreement, and the existing Lender shall, to the extent of the interest assigned, be released from its obligations under this Agreement. The Borrowers hereby agree to execute any amendment and/or any other provision document that may be necessary to effectuate such an assignment, including an amendment to this Agreement to provide for multiple lenders and an administrative agent to act on behalf of such lenders. Any assignment or transfer by the Lender of rights or obligations under this Agreement that does not comply with this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing8.06(a) shall be permittedtreated for purposes of this Agreement as a sale by the Lender of a participation in such rights and obligations in accordance with 8.06(c).
(b) Borrower The Borrowers may not assign its their rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the LendersLender.
(i) Any The Lender may, without the consent of, but with notice to, of the BorrowerBorrowers, sell participations to Participants that are Permitted Assignees in all or a portion of such the Lender’s rights and obligations under this Agreement; , provided that (A) such participant is not a Disqualified Lender, (B) such the Lender’s obligations under this Agreement shall remain unchanged, (CB) such the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders Borrowers shall continue to deal solely and directly with such the Lender in connection with such the Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c8.06(c), Section 13.06(d), Section 13.06(e8.06(e) and Section 13.178.16. Any agreement pursuant to which a the Lender sells such a participation shall provide that such the Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; , provided that such agreement may provide that such the Lender will not, without the consent of the Participant, agree to any Fundamental AmendmentAmendment that affects such Participant. Sections 2.10Section 8.03 (subject to the requirements and limitations therein, 2.11, and 13.03 including the requirements under Section 8.03(f) (it being understood that the documentation required under Section 8.03(f) shall be delivered to the participating Lender)) shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))8.06; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 8.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(iii) In the event that any the Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ the Lender, as nonfiduciary agent for the Borrower Borrowers, shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance and any other obligations under the Facility Documents which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all . An Advance may be participated in whole or any portion in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The Participant Register (including shall be available for inspection by the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except Borrowers to the extent that such disclosure is necessary for the Borrowers to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such the Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative AgentNotwithstanding any other provision in this Agreement, on behalf (i) the Lender may at any time create a security interest in, or pledge, all or any portion of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender rights under this Agreement (and in favor of any stated interest thereon). The entries Federal Reserve Bank in accordance with Regulation A of the Register shall be conclusive and binding for all purposes, absent manifest errorFederal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under Applicable Laws and this Section 8.06 shall not apply to any such pledge or grant of a security interest. No creation or grant of a security interest, pledge or collateral assignment pursuant to the Borrower, preceding sentence shall release the Agents and Lender from any of its obligations hereunder or substitute any pledgee or assignee for the Lenders shall treat each Person whose name is recorded in the Register Lender as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amountsparty hereto.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, the Lender, each Permitted Assignee which becomes a Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each The Lender and each Permitted Assignee which becomes a Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each The Lender and each Permitted Assignee which becomes a Lender further agrees agree that it they shall not assign, or grant any participations in, any of its their respective Advances or, Commitment or its Individual Lender Maximum Funding Uncommitted Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Offerpad Solutions Inc.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, Neither List nor its Affiliates may assign to an assignee all or a portion of its rights and and/or delegate its obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) third party without Revance’s prior written consent, which shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
provided or rejected for good reason within [*] (b[*]) Borrower days of List’s request); except that List may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and and/or delegate its obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lenderwithout Revance’s obligations under this Agreement shall remain unchangedprior written consent, (C) such Lender shall remain to an Affiliate solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with the sale, merger, or transfer of substantially all of the interests in or assets of List, provided that List shall give Revance prior written notice of such Lender’s rights assignment and obligations under this Agreement and (E) each Participant shall have agreed such assignee or delegate agrees to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision terms of this Agreement; , and provided that such agreement action would not in any way impair or jeopardize any pending or actual regulatory approval for a Product. Revance may provide that such Lender will notassign its rights hereunder in whole or part, without the consent or delegate any of the Participant, agree its obligations hereunder to any Fundamental Amendment. Sections 2.10Third Party, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant Third Party agrees to be subject to bound by the provisions of Section 13.03(g) as if it were an assignee under clause (a) terms of this Section 13.06 Agreement.
3. Effective as of the Second Addendum Date, Attachment C of the Agreement is hereby amended, restated and (B) no Participant replaced in its entirety to read as set forth on Exhibit A to this Second Addendum.
4. Except as modified herein, the Agreement shall remain in full force and effect.
5. This Second Addendum may be executed in one or more counterparts, each of which shall be entitled deemed an original of this Second Addendum and all of which, when taken together, shall be deemed to any amount under Section 2.10constitute one and the same valid and binding Second Addendum. [Signature Page Follows] IN WITNESS WHEREOF, 2.11, or 13.03 which is greater than the amount Parties have caused their duly authorized representatives to execute this Second Addendum as of the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Second Addendum Date. By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: President & CEO By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as nonfiduciary agent for the Borrower Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Board Chair Revance shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of pay List royalties (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “RegisterRoyalties”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement on Qualifying Revenue (and any stated interest thereonas defined below). The entries in Royalty rate on Qualifying Revenue shall be:
a) [*]% from the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes first commercial sale of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance Qualifying Products (and a Note, if any, evidencing the samedefined below) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide"First Sale") and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request until December 31st of the Collateral Agent or third full calendar year after First Sale;
b) [*]% for the Borrower an updated version of Schedule 1 reflecting next three calendar years (the then-current allocation of the Individual Lender Maximum Funding Amounts4th, 5th and 6th full years after First Sale); and
c) [*]% thereafter. Also see "Modified Royalty Rate," below.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: License and Service Agreement (Revance Therapeutics, Inc.)
Assignability. (a) Each Lender mayPrior to the Closing, none of the parties hereto may assign this Agreement; provided, however, that, subject to Section 9.5, upon written notice to Seller given no later than ten (10) Business Days prior to the Closing, and with the prior written consent of the Administrative Agent and the BorrowerSeller which will not be unreasonably withheld or delayed, Buyers may assign their right to an assignee all or a acquire any portion of its rights the Assets and their obligations under to assume any portion of the Assumed Liabilities to one or more direct or indirect wholly-owned subsidiaries of Cott.
(b) After the Closing, neither Seller nor Cott nor the other Buyers hereto may assign this Agreement (including all without the prior written consent of Cott, in the case of an assignment by Seller, and Seller, in the case of an assignment by Cott or a portion of its outstanding Advances or interests therein owned by itany Buyer, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s which consent to any such assignment (A) shall will not be unreasonably withheld or delayed; provided, however, that the events described in (provided that i)-(iv) below shall be deemed to be a Lender may not make any such permitted assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if require consent:
(i) a change in control in or a merger by (either as the assignee is a Permitted Assignee with respect to such assignor; and
surviving or non-surviving entity) or sale of all or substantially all of the assets of either Cott or Seller, (ii) either Seller, on the Borrower’s consent one hand, and Cott and the Buyers, on the other hand, may assign all of its rights hereunder to any such assignment pursuant to this Section 13.06(aan institutional lender (meaning a commercial bank, insurance company, reputable commercial lender, investment bank or a trustee for holders of debt securities) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (connection with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein financing from such institutional lender without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lenderother, (Biii) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement Seller may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion assign all of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for hereunder to the Borrower shall maintain a register on which it enters the name and address purchaser of all participants in or substantially all of the Advances held by it assets of the RC Domestic Business without the prior written consent of Cott, *[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED] and Seller remains jointly and severally liable for its obligations under Article VIII hereof and (iv) Cott and the principal amount applicable Buyer may assign all of (its rights and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except hereunder to the extent that such disclosure is necessary they relate solely to establish that such commitment, loan the RC International Assets to the purchaser of all or other obligation is in registered form under Section 5f.103-1(c) substantially all of the United States Treasury Regulations and Section 1.163-5(b) assets of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as RC International Business without the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or written consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of Seller *[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED] and Cott remains jointly and severally liable for its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretounder Article VIII hereof.
Appears in 1 contract
Assignability. (a) Each Lender mayThis Agreement and the Conduit Purchasers’ rights and obligations herein (including ownership of each Asset Interest purchased by it) shall be assignable in whole or in part by the Conduit Purchasers and their successors and assigns (including, without limitation, pursuant to an Asset Purchase Agreement), with the Seller’s consent, which shall not be unreasonably withheld or delayed, provided, that the Seller’s consent shall not be required if (i) the assignment shall be to an Eligible Assignee or (ii) an Event of Termination or an Incipient Event of Termination has occurred and is continuing. Each such assignor shall notify the Administrative Program Agent, its Group Agent and the BorrowerSeller of any such assignment and shall be accompanied by an assignment pursuant to clause (b) below by one or more of such Conduit Purchaser’s Related Committed Purchasers to one or more of such assignee Conduit Purchaser’s Related Committed Purchasers. Each such assignor may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Seller, the Servicer, COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT the Facility Custodian, the Parent or the Originator (including the Collateral), furnished to such assignor by or on behalf of the Seller, the Parent, the Servicer, the Facility Custodian, the Originator or the Program Agent; provided that, prior to any such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof.
(b) Each Committed Purchaser may assign to an assignee any Eligible Assignee or to any other Committed Purchaser all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its outstanding Advances or interests therein owned Commitment and any Asset Interests made by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided provided, however, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than the lesser of (x) an Event of Default shall have occurred ($10,000,000 and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result all of any Change in Law. The the assigning Committed Purchaser’s Commitment,
(iii) the parties to each such assignment shall execute and deliver to the Administrative Program Agent (with a copy to the Collateral assignor’s Group Agent), for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and
(iv) concurrently with such assignment, such assignor Committed Purchaser shall assign to such assignee Committed Purchaser or other Eligible Assignee an equal percentage of its rights and obligations under its Asset Purchase Agreement (or, if such assignor Committed Purchaser is Citibank, it shall arrange for such assignee Committed Purchaser or other Eligible Assignee to become a party to its Asset Purchase Agreement for a maximum Capital amount equal to the assignee’s Commitment). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Committed Purchaser hereunder and (y) the assigning Committed Purchaser shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in covering all or a the remaining portion of such Lenderan assigning Committed Purchaser’s rights and obligations under this Agreement; provided that (A) , such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement Committed Purchaser shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed cease to be bound by this Section 13.06(ca party hereto), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dc) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, Program Agent shall maintain at its address specified referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, 11.02 of this Agreement a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders Committed Purchasers and the Commitment of, and aggregate outstanding principal amount Capital of Asset Interests or interests therein owned by, each Committed Purchaser from time to time (the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon“Register”). The entries in the COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerSeller, the Agents Servicer, the Originator, the Program Agent, the Group Agents, the Conduit Purchasers and the Lenders shall Committed Purchasers may treat each Person person whose name is recorded in the Register as a Lender hereunder Committed Purchaser under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Seller or any Lender Committed Purchaser at any reasonable time and from time to time upon reasonable prior notice. An Advance (Upon its receipt of an Assignment and a NoteAcceptance executed by an assigning Committed Purchaser and an Eligible Assignee, the Program Agent shall, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (Assignment and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the BorrowerAcceptance has been completed, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an accept such Assignment and Acceptance) and , (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser record the information contained therein in the Register and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (Aiii) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished give prompt notice thereof to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerSeller.
(fd) Notwithstanding any other provision of this Section 13.0611.03, any Lender Committed Purchaser may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of principal Capital and interestYield) under this Agreement or under the Asset Purchase Agreement to secure obligations of such Lender, including any pledge or security interest granted Committed Purchaser to a Federal Reserve Bank, without notice to or consent of the Borrower Seller, the Servicer or the Administrative Program Agent; provided that no such pledge or grant of a security interest shall release such Lender a Committed Purchaser from any of its obligations hereunder or under the Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such Lender Committed Purchaser as a party heretohereto or to the Asset Purchase Agreement, as the case may be.
(e) Each Committed Purchaser may sell participations, to one or more banks or other entities which are Eligible Assignees, in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Asset Interests owned by it); provided, however, that:
(i) such Committed Purchaser’s obligations under this Agreement (including, without limitation, its Commitment to the Seller hereunder) shall remain unchanged,
(ii) such Committed Purchaser shall remain solely responsible to the other parties to this Agreement for the performance of such obligations, and
(iii) concurrently with such participation, the selling Committed Purchaser shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under its Asset Purchase Agreement. The Agents, the other Committed Purchasers and the Seller shall have the right to continue to deal solely and directly with such Committed Purchaser in connection with such Committed Purchaser’s rights and obligations under this Agreement. Such Committed Purchaser may, in connection with any such participation, disclose to participants and potential participants any information relating to the Seller, the Servicer, each Custodian, the Parent or the Originator (including the Collateral) furnished to such Committed Purchaser by or on behalf of the Seller, the Parent, the Originator, each Custodian, the Servicer or the Program Agent; provided that, prior to such disclosure, such participant or potential participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT
(f) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns.
(g) None of the Seller, the Originator or the Servicer may assign its rights or obligations hereunder or any other Transaction Document or any interest herein or therein without the prior written consent of the Program Agent and each Group Agent.
(h) Each Conduit Purchaser may, without the consent of the Seller, sell participations to one or more banks or other entities (each, a “Participant”) in all or a portion of its rights and obligations hereunder (including the outstanding Asset Interests); provided that following the sale of a participation under this Agreement (i) the obligations of such Conduit Purchaser shall remain unchanged, (ii) such Conduit Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Seller, the Servicer, the Facility Custodian, the Agents, and the Committed Purchasers shall continue to deal solely and directly with such Conduit Purchaser in connection with such Conduit Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which such Conduit Purchaser sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that such Conduit Purchaser will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Capital or Yield that is payable on account of any Asset Interest or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Seller to the Program Agent or such Conduit Purchaser’s Group Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Seller acknowledges and agrees that any Conduit Purchaser’s source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 11.04 and the other terms and provisions of this Agreement and the other Transaction Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to any Conduit Purchaser shall be deemed also to include those of its Participants; provided that the Seller shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Seller in the absence of the sale of any participation by a Conduit Purchaser to a Participant as contemplated by this Section 11.03(h). Any Conduit Purchaser, such Conduit Purchaser’s Group Agent or the Program Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Seller, the Servicer, any Custodian, the Parent or the Originator, including the Collateral, furnished to such Conduit Purchaser, such Conduit Purchaser’s Group Agent or the Program Agent by or on behalf of the Seller, the Parent, Servicer, any Custodian, or the Originator; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. Any interest sold by a Conduit Purchaser to a Committed Purchaser or other Liquidity Provider, or any designee thereof, under an Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 11.03(h) (and the Committed Purchaser, Liquidity Provider, or such designee, as applicable, shall not be considered a Participant as a result thereof). COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT
Appears in 1 contract
Sources: Warehouse Loan Purchase Agreement (Colonial Bancgroup Inc)
Assignability. (a) Each The Lender maymay at any time assign the Lender’s rights in this Agreement, with the consent other Loan Documents, the Obligations, or any part thereof and transfer the Lender’s rights in any or all of the Administrative Agent Collateral, and the BorrowerLender thereafter shall be relieved from all liability with respect to such Collateral. In addition, assign to an assignee all the Lender may at any time sell one or more participations in the Loan. In the event that a portion transfer by Lender of its rights and and/or obligations under this Agreement (including and any relevant Loan Documents) occurred or was deemed to occur by way of novation, the Parties explicitly agree that all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each securities and guarantees created under any Loan Documents shall be preserved for the benefit of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld new lender, new secured party, participant or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders their successors or assignees, in accordance with Section 13.01) or (y) such assignment is required as a result the provisions of any Change in Law. The parties to each such assignment shall execute and deliver to Article 1278 of the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedLuxembourg Civil Code.
(b) The Borrower may not sell or assign its rights or obligations hereunder this Agreement, or any interest herein without other agreement with the prior written consent Lender or any portion thereof, either voluntarily or by operation of law,
(c) This Agreement shall be binding upon the Agents Lender and the Lenders.
(i) Any Lender mayBorrower and their respective legal representatives and successors, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such successor to the Lender shall remain solely responsible be entitled to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to rely upon the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions 3.5 only if the applicable participation had not occurredsuccessor has satisfied requirements imposed by the final sentence of Section 3.5. If the Lender assigns rights under this Agreement, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after Lender shall, acting solely for this purpose as an agent of the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunderBorrower, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants each assignee’s interest in the Advances held by it Loan and the principal amount of amounts (and stated interest oninterest) of each assignee’s interest in the portion of Loans or other obligations under the Advance which is the subject of the participation Loan Documents (the “Participant Register”); provided that no the Lender shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) Regulations. Any sale or transfer of an interest in the proposed United States Treasury RegulationsLoan, however evidenced, shall be effective only upon appropriate entries with respect thereto being made in the Register. The entries in a Participant the Register shall be conclusive absent manifest error, and such the Lender shall treat each Person whose name is recorded in such Participant the Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For All references herein to the avoidance Borrower shall be deemed to include any successors, whether immediate or remote. In the case of doubta joint venture or partnership, the Administrative Agent (in its capacity term “Borrower” shall be deemed to include all joint venturers or partners thereof, who shall be jointly and severally liable hereunder. Notwithstanding the above, Lender agrees that, so long as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative AgentEvent of Default has occurred and is continuing, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing that prior to the Lenders, a copy any assignment of this Agreement and each signature page hereto and each Assignment and Acceptance delivered or the Note to, or any loan participation with, a Person other than a financial institution whose deposits are insured by the FDIC, Lender agrees to and accepted by it and a register (the “Register”) for the recordation obtain Borrower’s prior written approval of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposesproposed assignee or participant, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it approval shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerunreasonably withheld.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Loan Agreement (Golden Minerals Co)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the Without Lessor's prior written consent of the Agents and the Lenders.
(i) Any Lender mayconsent, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it Lessee shall not assign, transfer, sublet, lend, hypothecate, or grant pledge this Lease, or attempt in any participations inmannerly order to dispose of the Assets or any part thereof, and shall not remove the Assets or any of part thereof from the Premises, or permit it to be used by anyone other than Lessee or Lessee's employees (or Aveka Nutra Processing, LLC for the specific Equipment at its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such location). No assignment or participationtransfer by Lessee, (B) such Person agrees that it will be bound by shall in any manner impair, diminish or relieve the restrictions on contained in this Section 13.06(e), (C) a copy Lessee of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder under this Lease. Lessor may assign, transfer, or substitute grant or convey a participation or assignment in this Lease and the documents and instruments executed in connection herewith. Notwithstanding any assignment by Lessor, providing Lessee is not in default hereunder, Lessee shall quietly enjoy use of the Assets without interference, disruption or other acts or omissions adversely affecting Lessee's use or enjoyment of the Assets, of, by or from Lessor or anyone claiming by or through Lessor, subject to the terms and conditions of this Lease. In the event of any such pledgee assignment by Lessor, the assignee's rights shall not be subject to any prior claims or grantee for offsets of Lessee against the Lessor. Lessee, on receiving written notice of any such Lender assignment together with a duly executed copy of the instrument of assignment, shall thereafter make all Rent payments and other payments due and to become due under this Lease as a party heretomay be directed in the notice or instrument of assignment and Lessee’s obligation to pay all Rent payments and all other amounts when due hereunder to such assignee shall be absolute and unconditional, and shall not be subject to, nor shall Lessee assert against such assignee, any defense, claim, setoff, counterclaim or recoupment whatsoever that Lessee may have against Lessor or any other person. Following such assignment the term "Lessor" as used in this Lease shall be deemed to include such assignee. Upon notice of assignment by Lessor, Lessee agrees to acknowledge such assignment in writing by executing the notice of assignment furnished by Lessor. Any assignee of Lessor may reassign its rights and interests with the same force and effect as the assignment described herein.
Appears in 1 contract
Assignability. (a) Each Lender mayThis Agreement and the Investors' rights and obligations herein (including ownership of each Advance made by it) shall be assignable in whole or in part by the Investors and their successors and assigns (including, without limitation, pursuant to an Asset Purchase Agreement), with the Borrower's consent, which shall not be unreasonably withheld or delayed, provided, that the Borrower's consent shall not be required if (i) the assignment shall be to an Eligible Assignee or (ii) an Event of Termination has occurred and is continuing. Each such assignor shall notify the Administrative Program Agent, its Investor Agent and the Borrower of any such assignment and shall be accompanied by an assignment pursuant to clause (b) below by one or more of such Investor's Related Banks to one or more of such assignee Investor's Related Banks. Each such assignor may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Borrower, the Servicer, SPE I, the Parent or any Originator, including the Collateral furnished to such assignor by or on behalf of the Borrower, the Parent, SPE I, Servicer, any Originator or by the Program Agent; provided that, prior to any such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof.
(b) Each Bank may assign pursuant to an assignee Section 11.03(a) above to any Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its outstanding Bank Commitment and any Advances or interests therein owned made by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided provided, however, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than the lesser of (x) an Event of Default shall have occurred ($10,000,000 and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result all of any Change in Law. The the assigning Bank's Bank Commitment,
(iii) the parties to each such assignment shall execute and deliver to the Administrative Program Agent (with a copy to the Collateral assignor's Investor Agent), for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and
(iv) concurrently with such assignment, such assignor Bank shall assign to such assignee Bank or other Eligible Assignee an equal percentage of its rights and obligations under its Asset Purchase Agreement (or, if such assignor Bank is Citibank, it shall arrange for such assignee Bank or other Eligible Assignee to become a party to its Asset Purchase Agreement for a maximum Principal amount equal to the assignee's Bank Commitment). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in covering all or a the remaining portion of such Lender’s an assigning Bank's rights and obligations under this Agreement; provided that (A) , such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement Bank shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed cease to be bound by this Section 13.06(ca party hereto), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dc) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, Program Agent shall maintain at its address specified referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, 11.02 of this Agreement a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders Banks and the Bank Commitment of, and aggregate outstanding principal amount Principal of Advances or interests therein owned by, each Bank from time to time (the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon"Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Originators, the Program Agent, the Investor Agents, the Investors and the Lenders shall Banks may treat each Person person whose name is recorded in the Register as a Lender hereunder Bank under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice. An Advance (Upon its receipt of an Assignment and a NoteAcceptance executed by an assigning Bank and an Eligible Assignee, the Program Agent shall, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (Assignment and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the BorrowerAcceptance has been completed, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an accept such Assignment and Acceptance) and , (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed record the information contained therein in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower Register and (Diii) any such representations or agreements shall run give prompt notice thereof to the benefit of and be enforceable by the Borrower.
(fd) Notwithstanding any other provision of this Section 13.0610.03, any Lender Bank may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of principal Principal and interestYield) under this Agreement or under the Asset Purchase Agreement to secure obligations of such Lender, including any pledge or security interest granted Bank to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Program Agent; provided that no such pledge or grant of a security interest shall release such Lender a Bank from any of its obligations hereunder or under the Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such Lender Bank as a party heretohereto or to the Asset Purchase Agreement, as the case may be.
(e) Each Bank may sell participations, to one or more banks or other entities which are Eligible Assignees, in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Bank Commitment and the Advances owned by it); provided, however, that:
(i) such Bank's obligations under this Agreement (including, without limitation, its Bank Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties to this Agreement for the performance of such obligations, and
(iii) concurrently with such participation, the selling Bank shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under its Asset Purchase Agreement. The Agents, the other Banks and the Borrower shall retain the right to continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement. Such Bank may, in connection with any such participation, disclose to participants and potential participants any information relating to the Borrower, the Servicer, SPE I, the Parent or any Originator, including the Collateral furnished to such Bank by or on behalf of the Borrower, the Parent, any Originator or the Servicer; provided that, prior to such disclosure, such participant or potential participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof.
(f) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns.
(g) Neither the Borrower, the Parent, any Originator or the Servicer may assign its rights or obligations hereunder or any other Transaction Document or any interest herein or therein without the prior written consent of the Program Agent and each Investor Agent.
(h) CAFCO may, without the consent of the Borrower, sell participations to one or more banks or other entities (each, a "Participant") in all or a portion of its rights and obligations hereunder (including the outstanding Advances); provided that following the sale of a participation under this Agreement (i) the obligations of CAFCO shall remain unchanged, (ii) CAFCO shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Servicer, the Agents, and the Banks shall continue to deal solely and directly with CAFCO in connection with CAFCO's rights and obligations under this Agreement. Any agreement or instrument pursuant to which CAFCO sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that CAFCO will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Principal or Yield that is payable on account of any Advance or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Borrower to the Program Agent or CAFCO's Investor Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Borrower acknowledges and agrees that CAFCO's source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 11.04 and the other terms and provisions of this Agreement and the other Transaction Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to CAFCO shall be deemed also to include those of its Participants; provided that the Borrower shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Borrower in the absence of the sale of any participation by CAFCO to a Participant as contemplated by this Section 11.03(h). CAFCO, CAFCO's Investor Agent or the Program Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Borrower, the Servicer, SPE I, the Parent or the Originators, including the Collateral, furnished to CAFCO, CAFCO's Investor Agent or the Program Agent by or on behalf of the Borrower, Parent, Servicer or any Originator; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. Any interest sold by CAFCO to a Bank or its designee under its Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 11.03(h) (and the Bank or its designee shall not be considered a Participant as a result thereof).
Appears in 1 contract
Sources: Receivables Financing Agreement (Hayes Lemmerz International Inc)
Assignability. (a) No Loan Party shall have the right to assign this Agreement or any interest therein except with the prior written consent of Agent and all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrowers.
(c) Each Lender may, with the consent of the Administrative Agent and (if no Event of Default has occurred and is continuing) ▇▇▇▇▇▇▇▇▇▇, which consent shall not be unreasonably withheld, but without the Borrowerconsent of any other Lender, assign to an assignee one or more banks or other financial institutions all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itand the Other Agreements; provided, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to Agent, for its acceptance and recording in the Administrative Agent Register (with a copy to the Collateral Agent) as defined below), an Assignment and Acceptance in the form attached hereto as Exhibit D ("Assignment and Acceptance"), and a processing and recordation fee of Three Thousand Five Hundred and No/100 Dollars ($3,500.00) to be paid by the applicable tax forms required by Section 13.03(gassignee, and (ii) no such assignment shall be for less than Five Million Dollars ($5,000,000). Notwithstanding Upon such execution and delivery of the Assignment and Acceptance to Agent, from and after the date specified as the effective date in the Assignment and Acceptance (the "Acceptance Date"), (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any other provision rights it may have pursuant to Section 19 of this Section 13.06Agreement which will survive) and be released from its obligations under this Agreement (and, no assignment by any Lender to in the Borrower or any case of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred Assignment and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in Acceptance covering all or a the remaining portion of such an assigning Lender’s 's rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible cease to the other parties hereto for the performance of such obligations, be a party hereto).
(Dd) such BorrowerBy executing and delivering an Assignment and Acceptance, the Agents assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the other Lenders shall continue assigning Lender makes no representation or warranty and assumes no responsibility with respect to deal solely and directly with such Lender any statements, warranties or representations made in or in connection with this Agreement and the Other Agreements or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the Other Agreements, (ii) such Lender’s rights assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Loan Parties or any other Obligor or the performance or observance by Loan Parties or any other Obligor of its obligations under this Agreement and the Other Agreements, (Eiii) each Participant shall have agreed such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(ein subsection 9(c) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce of this Agreement and such other documents and information as it has deemed appropriate to approve make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or any amendmentother Lender and based on such documents and information as it shall deem appropriate at the time, modification continue to make its own credit decisions in taking or waiver not taking action under this Agreement, (v) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of any provision the obligations which by the terms of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees Agreement are required to be subject to the provisions of Section 13.03(g) performed by it as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationLender.
(iie) In the event that any Lender sells participations in any portion of its rights and obligations hereunderAgent shall, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified referred to in Section 13.02 or such other address as 20 of the Administrative Agent shall designate in writing to the Lenders, Agreement a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding Maximum Loan Commitments of, and principal amount of the outstanding Advances maintained by Loans owing to, each Lender under this Agreement from time to time (and any stated interest thereonthe "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerLoan Parties, the Agents Agent and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the Borrower Loan Parties, Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrowers. Within five (5) Business Days after its receipt of such notice, Borrowers shall execute and deliver to Agent in exchange for the surrendered promissory note or notes, a new promissory note or notes to the order of the assignee in an amount equal to such assignee's commitments and outstanding Loans hereunder and, if the assigning Lender has retained a portion of the Loans, a new promissory note or notes to the order of the assigning Lender in an amount equal to the remaining commitments and outstanding Loans hereunder of such assigning Lender under the terms of this Agreement. Such new promissory note or notes shall re-evidence the Indebtedness outstanding under the old promissory note or notes and shall be in the aggregate principal amount of such surrendered promissory note or notes, shall be dated of even date herewith and shall otherwise be in substantially the form of the promissory note or notes subject to such assignment.
(g) Each Lender may sell participations (without the consent of Agent, Loan Parties or any other provision of this Section 13.06Lender) to one or more parties, any Lender may at any time pledge in or grant a security interest in to all or any a portion of its rights (including rights to payment of principal and interest) obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitment or the Loans owing to secure it); provided, that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Loan Parties, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the amounts owing by any Loan Party to any such participant and the relevant Lender making such participation under Sections 4(b)(iii), including (iv), (v) and (vi), 4(c)(v) and 19 shall not exceed the amounts that would have been payable had there been no such participation and (iv) such Lender shall not transfer, grant, assign or sell any pledge participation under which the participant shall have rights to approve any amendment or security interest granted to a Federal Reserve Bankwaiver of this Agreement.
(h) Each Lender agrees that, without notice to or the prior written consent of Loan Parties and Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or other Liabilities under the Borrower securities laws of the United States of America or of any jurisdiction.
(i) In connection with the Administrative Agent; provided that no such pledge efforts of any Lender to assign its rights or grant of a security interest shall release obligations or to participate interests, such Lender from may disclose any of information in its obligations hereunder possession regarding Borrowers to such potential bona fide assignees or substitute any such pledgee or grantee for such Lender as a party heretoparticipants.
Appears in 1 contract
Sources: Loan and Security Agreement (Poindexter J B & Co Inc)
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent Borrower (such consent not to be unreasonably withheld, conditioned or delayed) and the BorrowerAdministrative Agent, assign to an assignee any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that unless such assignment is to a Competitor, such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have objected in writing within five (5) Business Days of receipt of any such request for consent; provided, further, that:
(i) each of neither the Borrower’s and nor the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is (A) a Permitted Assignee with respect to such assignor; andLender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (x) an Event of Default shall have occurred and be continuing; provided that in no event shall an assignment be made to a Competitor without the Borrower’s prior written consent unless an Event of Default shall have occurred and be continuing; and
(and not been waived by iii) notwithstanding anything herein to the Lenders in accordance contrary, each Lender may make an assignment to any Person (other than a Competitor) with Section 13.01) notice to, but without the consent of, the Borrower or (y) the Administrative Agent if such assignment is required as ▇▇▇▇▇▇ makes a result reasonable determination that its ownership of any Change in of its rights or obligations hereunder is prohibited by Applicable Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of Citibank, N.A.). Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 13.03(g12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement, and to the extent of the interest assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender may be made to the Borrower Borrower, the Collateral Manager, the Equityholder or any of its their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Disqualified Institution Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (except if an Event of Default has occurred and is continuing) shall be permittedy).
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(i) Any Lender may, without the consent of, of (but with notice to, ) the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that prior to the occurrence of an Event of Default, the consent of the Borrower (such consent not to be unreasonably withheld or delayed) will be required only if such participant would be a Competitor; provided, further, that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided . The Borrower agrees that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant shall be entitled to the benefits of Sections 2.09 and 12.03 (subject to the requirements and limitations therein, including the requirements under Section 12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Section; provided that such Participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 2.09 or 12.03, 2.11with respect to any participation, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.20 with respect to any Participant.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no . An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other rights and obligations under any Facility Documenthereunder) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is rights and obligations are in registered form under Section 5f.103-1(c) 1 of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and Agreement, each signature page hereto and hereto, each Assignment and Acceptance delivered to and accepted by it it, and a register (the “Register”) for the recordation of the names names, addresses and addresses wiring instructions of the Lenders and the aggregate outstanding principal amount of the outstanding Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of this Agreementthe Facility Documents. The Register shall be available for inspection by the Borrower Borrower, the Collateral Manager, the Collateral Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each NoteNote with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts12.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, Document and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3), and (7) of Rule 501(a) under the Securities Act (an “Accredited Investor”) and a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender severally represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerPurchaser.
(f) Notwithstanding any other provision of this Section 13.0612.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Credit and Security Agreement (Fidelity Private Credit Fund)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required (other than with respect to an assignment to a MS Competitor) if (x) an Event of Default shall have occurred and is continuing (and not been waived by the applicable Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent ofof (other than with respect to a participation to a MS Competitor), but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g) (it being understood that the documentation required under Section 13.03(g) shall be delivered to the participating Lender)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and proposed Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. This Section 13.06(c)(ii) shall be construed so that such commitments, loans, letters of credit or other obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code, Section 5f.103-1(c) of the United States Treasury regulations, and any other related regulations or successor provisions or regulations.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount Amounts to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (T Series Middle Market Loan Fund LLC)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders Except in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (connection with a copy Change of Control, which is subject to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required Section 12.6(a)-(d), neither this Restated Agreement, nor any right or obligation hereunder, may be assigned by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein XTENT without the prior written consent of the Agents and the Lenders.
(i) Any Lender mayBESA. In addition, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender except in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound a Change of Control, any attempted transfer by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent XTENT of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject technology related to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to BESA Items shall be subject to the provisions prior written approval of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) BESA. Unless otherwise expressly consented to by BESA, no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held assignment by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity XTENT will relieve XTENT of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) agreement, document or instrument executed and delivered pursuant to any Person except this Restated Agreement. Any purported assignment in violation of this Restated Agreement will be null and void and shall give BESA the option to immediately terminate this Restated Agreement. BESA shall have the right to assign this Restated Agreement in its discretion. Subject to the extent that such disclosure is necessary to establish that such commitmentforegoing, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Restated Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run inure to the benefit of and be enforceable by binding upon the BorrowerParties and their respective successors and permitted assigns.
(fa) Notwithstanding any other provision In the event BESA enters into an agreement for a Change of Control or grants another entity an option or right to enter into an agreement for a Change of Control, the acquiring or surviving entity shall be bound by the terms and conditions of this Section 13.06Restated Agreement.
(b) In the event XTENT enters into an agreement for a Change of Control or grants another entity an option or right to enter into an agreement for a Change of Control, any Lender XTENT may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under assign this Restated Agreement to secure obligations the acquiring or surviving entity which shall be bound by the terms hereof, subject to the following:
(i) If at the time of such LenderChange of Control the acquiring entity markets a Stent for coronary or peripheral applications incorporating Rapamycin or an analog thereof, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent (1) the terms of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest this Restated Agreement shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.remain in effect
Appears in 1 contract
Sources: License Agreement (Xtent Inc)
Assignability. (a) Each Lender mayThis Agreement and the Investors' rights and obligations herein (including ownership of each Advance made by it) shall be assignable in whole or in part by the Investors and their successors and assigns (including, without limitation, pursuant to an Asset Purchase Agreement), with the Borrower's consent, which shall not be unreasonably withheld or delayed, provided, that the Borrower's consent shall not be required if (i) the assignment shall be to an Eligible Assignee or (ii) an Event of Termination or an Incipient Event of Termination has occurred and is continuing. Each such assignor shall notify the Administrative Program Agent, its Investor Agent and the Borrower of any such assignment. Each such assignor may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Borrower, the Collection Agent, any Predecessor Purchaser, the Parent or any other Originator, including the Transferred Assets furnished to such assignor by or on behalf of the Borrower, the Parent, any other Originator or by the Program Agent; provided that, prior to any such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof.
(b) Each Bank may assign to an assignee any Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its outstanding Bank Commitment and any Advances or interests therein owned made by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided provided, however, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAgreement,
(ii) the Borrower’s consent amount being assigned pursuant to any each such assignment pursuant (determined as of the date of the Assignment and Acceptance Agreement with respect to this Section 13.06(asuch assignment) shall not in no event be required if less than the lesser of (x) an Event of Default shall have occurred ($10,000,000 and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result all of any Change in Law. The the assigning Bank's Bank Commitment,
(iii) the parties to each such assignment shall execute and deliver to the Administrative Program Agent (with a copy to the Collateral assignor's Investor Agent) ), for its acceptance and recording in the Register, an Assignment and Acceptance Agreement, together with a processing and the applicable tax forms required by Section 13.03(g). Notwithstanding any recordation fee of $2,500,
(iv) concurrently with such assignment, such assignor Bank shall assign to such assignee Bank or other provision Eligible Assignee an equal percentage of this Section 13.06its rights and obligations under its Asset Purchase Agreement (or, no assignment by any Lender if such assignor Bank is Citibank, it shall arrange for such assignee Bank or other Eligible Assignee to become a party to its Asset Purchase Agreement for a maximum Principal amount equal to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.assignee's Bank Commitment), and
(bv) Borrower Citibank may not assign any portion of its Bank Commitment to the extent that it reduces such Bank Commitment below (A) 10% of the Facility Amount minus (B) the Principal of all Advances made by CNAI. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights or and obligations hereunder or any interest herein without have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the prior written consent rights and obligations of a Bank hereunder and (y) the Agents assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish such rights and be released from such obligations under this Agreement (and, in the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in case of an Assignment and Acceptance Agreement covering all or a the remaining portion of such Lender’s an assigning Bank's rights and obligations under this Agreement; provided that (A) , such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement Bank shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed cease to be bound by this Section 13.06(ca party hereto), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(dc) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, Program Agent shall maintain at its address specified referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, 11.02 of this Agreement a copy of this Agreement and each signature page hereto and each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders Banks and the Bank Commitment of, and aggregate outstanding principal amount Principal of Advances or interests therein owned by, each Bank from time to time (the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon"Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Originators, the Program Agent, the Investor Agents, the Investors and the Lenders shall Banks may treat each Person person whose name is recorded in the Register as a Lender hereunder Bank under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice. An Advance (Upon its receipt of an Assignment and a NoteAcceptance Agreement executed by an assigning Bank and an Eligible Assignee, the Program Agent shall, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (Assignment and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the BorrowerAcceptance Agreement has been completed, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an accept such Assignment and Acceptance) and Acceptance Agreement, (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed record the information contained therein in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower Register and (Diii) any such representations or agreements shall run give prompt notice thereof to the benefit of and be enforceable by the Borrower.
(fd) Notwithstanding any other provision of this Section 13.0610.03, any Lender Bank may at any time pledge or grant a security interest in all or any portion of its rights (including including, without limitation, rights to payment of principal Principal and interestYield) under this Agreement or under the Asset Purchase Agreement to secure obligations of such Lender, including any pledge or security interest granted Bank to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Program Agent; provided that no such pledge or grant of a security interest shall release such Lender a Bank from any of its obligations hereunder or under the Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such Lender Bank as a party heretohereto or to the Asset Purchase Agreement, as the case may be.
(e) Each Bank may sell participations, to one or more banks or other entities which are Eligible Assignees, in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Bank Commitment and the Advances owned by it); provided, however, that:
(i) such Bank's obligations under this Agreement (including, without limitation, its Bank Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties to this Agreement for the performance of such obligations, and
(iii) concurrently with such participation, the selling Bank shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under its Asset Purchase Agreement. The Agents, the other Banks and the Borrower shall have the right to continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement. Such Bank may, in connection with any such participation, disclose to participants and potential participants any information relating to the Borrower, the Collection Agent, any Predecessor Purchaser, the Parent or any other Originator, including the Transferred Assets furnished to such Bank by or on behalf of the Borrower, provided that, prior to such disclosure, such participant or potential participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof.
(f) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns.
(g) Neither the Borrower, the Parent, any Originator or the Collection Agent may assign its rights or obligations hereunder or any other Transaction Document or any interest herein or therein without the prior written consent of the Program Agent and each Investor Agent.
(h) CAFCO may, without the consent of the Borrower, sell participations to one or more banks or other entities (each, a "Participant") in all or a portion of its rights and obligations hereunder (including the outstanding Advances); provided that following the sale of a participation under this Agreement (i) the obligations of CAFCO shall remain unchanged, (ii) CAFCO shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agent, and the Banks shall continue to deal solely and directly with CAFCO in connection with CAFCO's rights and obligations under this Agreement. Any agreement or instrument pursuant to which CAFCO sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that CAFCO will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Principal or Yield that is payable on account of any Advance or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Borrower to the Program Agent or CAFCO's Investor Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Borrower acknowledges and agrees that CAFCO's source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 11.04 and the other terms and provisions of this Agreement and the other Transaction Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to CAFCO shall be deemed also to include those of its Participants; provided that the Borrower shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Borrower in the absence of the sale of any participation by CAFCO to a Participant as contemplated by this Section 11.03(h). CAFCO or the Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Borrower, the Collection Agent, any Predecessor Purchaser, the Parent or the Originators, including the Transferred Assets, furnished to CAFCO or the Agent by or on behalf of the Borrower; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. Any interest sold by CAFCO to a Bank or its designee under its Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 11.03(h) (and the Bank or its designee shall not be considered a Participant as a result thereof).
(i) For avoidance of doubt, it is agreed that Jupiter may assign its rights and obligations hereunder as an Investor to Park Avenue Receivables Company, LLC and Bank One may assign its rights and obligations hereunder as a Bank and an Investor Agent to JPMorgan Chase Bank without any Person's consent, but upon 10 days' prior written notice to the Agents, the Trustee and the Borrower.
(j) Notwithstanding any other provision of this Section 11.03, none of the rights or obligations under this Agreement may be assigned in whole or in part unless as of the effective date of such assignment, the assignee is either (A) a "United States person" (within the meaning of Section 7701(a)(30) of the Code), or (B) entitled to a complete exemption from all U.S. withholding taxes with respect to payments made to such assignee under any Transaction Document.
Appears in 1 contract
Assignability. (a) Each The Lender may, with the consent of the Administrative Agent and the Borrower, may assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(ACommitment) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in LawAssignee. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) Borrowers an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g8.03(f). Notwithstanding The Lender, acting solely for this purpose as a non-fiduciary agent of Borrowers, shall maintain a register on which it enters the name and address of each Lender assignee, and the principal amounts (and stated interest) of each Lender assignee’s interest in the rights and obligations under this Loan Agreement and related Loan Documents (the “Register”). No assignment shall be effective unless recorded in the Register. Subject to notification to the Borrowers of an assignment and compliance with the terms of the Intercreditor Agreement, the assignee shall be a party hereto and, to the extent of the interest assigned, have the rights and obligations of the existing Lender under this Agreement, and the existing Lender shall, to the extent of the interest assigned, be released from its obligations under this Agreement. The Borrowers hereby agree to execute any amendment and/or any other provision document that may be necessary to effectuate such an assignment, including an amendment to this Agreement to provide for multiple lenders and an administrative agent to act on behalf of such lenders. Any assignment or transfer by the Lender of rights or obligations under this Agreement that does not comply with this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing8.06(a) shall be permittedtreated for purposes of this Agreement as a sale by the Lender of a participation in such rights and obligations in accordance with 8.06(c).
(b) Borrower The Borrowers may not assign its their rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the LendersLender.
(i) Any The Lender may, without the consent of, but with notice to, of the BorrowerBorrowers, sell participations to Participants that are Permitted Assignees in all or a portion of such the Lender’s rights and obligations under this Agreement; , provided that (A) such participant is not a Disqualified Lender, (B) such the Lender’s obligations under this Agreement shall remain unchanged, (CB) such the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders Borrowers shall continue to deal solely and directly with such the Lender in connection with such the Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c8.06(c), Section 13.06(d), Section 13.06(e8.06(e) and Section 13.178.16. Any agreement pursuant to which a the Lender sells such a participation shall provide that such the Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; , provided that such agreement may provide that such the Lender will not, without the consent of the Participant, agree to any Fundamental AmendmentAmendment that affects such Participant. Sections 2.10Section 8.03 (subject to the requirements and limitations therein, 2.11, and 13.03 including the requirements under Section 8.03(f) (it being understood that the documentation required under Section 8.03(f) shall be delivered to the participating Lender)) shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))8.06; provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 8.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(iii) In the event that any the Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ the Lender, as nonfiduciary agent for the Borrower Borrowers, shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance and any other obligations under the Facility Documents which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all . An Advance may be participated in whole or any portion in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The Participant Register (including shall be available for inspection by the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except Borrowers to the extent that such disclosure is necessary for the Borrowers to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such the Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative AgentNotwithstanding any other provision in this Agreement, on behalf (i) the Lender may at any time create a security interest in, or pledge, all or any portion of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender rights under this Agreement (and in favor of any stated interest thereon). The entries Federal Reserve Bank in accordance with Regulation A of the Register shall be conclusive and binding for all purposes, absent manifest errorFederal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under Applicable Laws and this Section 8.06 shall not apply to any such pledge or grant of a security interest. No creation or grant of a security interest, pledge or collateral assignment pursuant to the Borrower, preceding sentence shall release the Agents and Lender from any of its obligations hereunder or substitute any pledgee or assignee for the Lenders shall treat each Person whose name is recorded in the Register Lender as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amountsparty hereto.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, the Lender, each Permitted Assignee which becomes a Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each The Lender and each Permitted Assignee which becomes a Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each The Lender and each Permitted Assignee which becomes a Lender further agrees agree that it they shall not assign, or grant any participations in, any of its their respective Advances or its Individual Lender Maximum Funding Amount Commitment to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Offerpad Solutions Inc.)
Assignability. (a) Each Lender mayThis Agreement, with the consent Note, the Swingline Note and the other Loan Documents shall be binding upon and shall inure to the benefit of the Administrative Agent parties hereto and the Borrower, assign to an assignee all or a portion of its rights thereto and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s their respective successors and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided assigns EXCEPT that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights hereunder or obligations hereunder thereunder or any interest herein or therein, whether by operation of law or otherwise, without the prior written consent of each Lender. Each Lender and Swingline Lender shall, with the Agents prior consent of each of Borrower and the Lenders.
Agent, which consent in each case shall not be unreasonably withheld, (i) Any Lender may, without have the consent of, but right in accordance with notice to, the Borrower, this Section 11.12 to sell participations to Participants in and assign either (A) all of its interest or a (B) any portion of such Lender’s rights and obligations its interest equal to or greater than Seven Million Five Hundred Thousand Dollars ($7,500,000), under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents Note, the Swingline Note and the other Lenders shall continue Loan Documents and (ii) to deal solely and directly with such grant any participation or other interest herein or therein; provided, that if a Lender in connection with such Lender’s rights and obligations or Swingline Lender sells or assigns less than all of its interest under this Agreement and the other Loan Documents, it shall continue to hold at least a Seven Million Five Hundred Thousand Dollar (E$7,500,000) each Participant shall have agreed to be bound by this Section 13.06(c)interest after such sale or assignment; provided further, Section 13.06(d)that upon any such sale and assignment or participation, Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right pay to enforce this Agreement Agent a documentation fee equal to Two Thousand Five Hundred Dollars ($2,500), unless such sale and assignment or participation is to approve any amendment, modification or waiver an Affiliate of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationLender.
(iib) In Notwithstanding any other provision contained in this Agreement or any other Loan Document to the event that contrary, any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose may assign all or any portion of the Participant Register (including Loans, the identity of any Participant Note or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) the Swingline Note held by it to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan Federal Reserve Bank or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) as collateral security pursuant to Regulation A of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner Board of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent Governors of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (Federal Reserve System and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection Operating Circular issued by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice provided that any payment in respect of such assigned Loans, Note or Swingline Note made by Borrower to or consent for the account of the Borrower assigning or pledging Lender in accordance with the Administrative Agent; provided that no terms of this Agreement shall satisfy Borrower's obligations hereunder in respect to such pledge assigned Loans, Note or grant Swingline Note to the extent of a security interest such payment. No such assignment shall release such the assigning Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretohereunder.
Appears in 1 contract
Sources: Warehousing Credit Agreement (Leasing Solutions Inc)
Assignability. (a) Each Any Lender may, with the consent of the Administrative Agent and the Borrower, may assign to an assignee one or more assignees (provided that no assignments shall be made to any Loan Party or its Affiliates or to a natural Person) all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Commitment and the Loans at the time owing to it), with the prior written consent (such consent not to be unreasonably withheld or interests therein owned by it, together with ratable portions delayed) of its Individual Lender Maximum Funding Amount)the Borrower Representative and the Administrative Agent; provided that:that (x) no consent of the Borrower Representative or the Administrative Agent shall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund and (y) no consent of the Borrower Representative shall be required if an Event of Default has occurred and is continuing, for an assignment to any other assignee; provided, further, that the Borrower Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof.
(b) With respect to any assignment hereunder
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to varying, percentage of all rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; Agreement, and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a copy processing and recordation fee of $2,500.
(c) Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the Collateral Agentextent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The names and addresses of the Lenders, the Aggregate Commitment, the Aggregate Loan Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Loan Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the applicable tax forms required by Section 13.03(g)Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest therein. Notwithstanding any other provision of this Section 13.06Agreement, no assignment by any Lender to transfer of the Borrower Aggregate Loan Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuingthis Agreement. This Section 10.03(c) shall be permittedconstrued so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(bd) Borrower may not assign Upon its rights or obligations hereunder or any interest herein without receipt of an Assignment and Acceptance, the prior written consent of Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the Agents information contained therein in the Register and (iii) give prompt notice thereof to the LendersBorrowers and to the Calculation Agent.
(ie) Any Lender may, without the consent of, but with notice to, of any Loan Party (except in the Borrowercase of participations to Approved Participants as described below), sell participations to Participants one or more Persons (each, a “Participant”) in all or a portion of such Lender’s its rights and obligations under this Agreementhereunder (including the outstanding Loans); provided that (A) such participant is not following the sale of a Disqualified Lender, (B) such Lender’s obligations participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (Diii) such Borrowerthe Borrowers, the Agents Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17Agreement. Any agreement or instrument pursuant to which a such Lender sells such a participation shall provide that such Lender the Participant shall retain the sole not have any right to enforce direct the enforcement of this Agreement and or the other Loan Documents or to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendmentamendment, modification or waiver that (i) increases the Commitment participated to such Participant, (ii) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof, (iii) reduces any fees payable by the Borrowers to the Administrative Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees, (iv) extends the Maturity Date (other than pursuant to the Extension Term), (v) other than as permitted by this Agreement, releases the security interest in substantially all of the Collateral or releases guarantees of all or substantially all Guarantors or (vi) amends, modifies or waives any provision of the definition of “Majority Lenders”, “Thirty-Three Percent Lenders”, “Eighty-Five Percent Lenders”, “Supermajority Lenders” or Section 10.01. The Borrowers acknowledge and agree that any Lender’s source of funds may derive in part from its Participants. Accordingly, references in Section 2.09 or Section 2.10 and the other terms and provisions of this Agreement and the other Loan Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.09, 2.10, 2.112.11 and 2.12 (subject to the requirements and limitations therein, and 13.03 including the requirements under Section 2.12(f) it being understood that the documentation required under Section 2.12(f) shall apply be delivered to each Participant the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause paragraph (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))Section; provided that such Participant (A) such Participant agrees to be subject to the provisions of Section 13.03(g) 2.22 as if it were an assignee under clause paragraph (a) of this Section 13.06 Section; and (B) no Participant shall not be entitled to receive any amount greater payment under Section Sections 2.09, 2.10, 2.112.11 or 2.12, or 13.03 which is greater with respect to any participation, than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In . Each Lender that sells a participation shall, acting solely for this purpose as an agent of the event that any Lender sells participations in any portion of its rights and obligations hereunderBorrower, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it each Participant and the principal amount of amounts (and stated interest oninterest) of each Participant’s interest in the portion of Loans or other obligations under the Advance which is the subject of the participation Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans loans, letters of credit or its other obligations under any Facility Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
. Notwithstanding the foregoing, the sales of participations to Approved Participants shall be subject to prior written consent (dwhich consent shall not be unreasonably withheld) The of the Borrower Representative and the Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent ; provided that no consent of the BorrowerBorrower Representative shall be required if an Event of Default has occurred and is continuing. For the avoidance of doubt, it is understood and agreed that no Participant shall maintain at its address specified in Section 13.02 or have the additional rights and obligations granted to each “Approved Participant” under this Agreement unless the assignment to such other address as Participant has been approved by the Borrower Representative and the Administrative Agent shall designate in writing (and, if applicable, the related Assigning Lender has assigned its voting rights to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”such Participant) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries as further described in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes definition of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each “Approved Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) The Loan Parties may not assign any of their respective rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Majority Lenders.
(g) Notwithstanding any other provision of this Section 13.06Agreement to the contrary, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of the principal balance of the Loans and interestInterest with respect thereto) under this Agreement hereunder to secure obligations of such Lender, including any pledge or security interest granted Lender to a Federal Reserve Bank, without notice to or consent of the Borrower Borrowers or the Administrative Agent; provided provided, that no such pledge or grant of a security interest shall (x) release such a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretohereto or (y) create any additional, or modify any existing, obligations of the Borrowers under this Agreement or any other Loan Document.
Appears in 1 contract
Assignability. (a) Each Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Administrative Agent Borrower (such consent (other than with respect to a Competitor) not to be unreasonably withheld, conditioned or delayed) and the BorrowerAdministrative Agent, assign to an assignee any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Outstanding or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that, other than with respect to any assignment to a Competitor, such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent; provided, further, that:
(i) each of neither the Borrower’s and nor the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is (A) a Permitted Assignee with respect to such assignor; andLender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates;
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a12.06(a) shall not be required if (x) an Event of Default shall have occurred and be continuing; provided that, in no event shall an assignment be made to a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (and not been waived by the Lenders in accordance with Section 13.01a), clause (b) or clause (yh) of Section 6.01 shall have occurred and be continuing; and USActive 59109857.10
(iii) notwithstanding anything herein to the contrary, each Lender may make an assignment to any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such assignment is required as ▇▇▇▇▇▇ makes a result reasonable determination that its ownership of any Change in of its rights or obligations hereunder is prohibited by Applicable Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of Citibank, N.A.). Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 13.03(g12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement, and to the extent of the interest assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender may be made to the Borrower Borrower, the Collateral Manager, the Equityholder or any of its their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Disqualified Institution Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (except if an Event of Default has occurred and is continuing) shall be permittedy).
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Administrative Agent and the Lenders.
(i) Any Lender may, without the consent of, of (but with notice to, ) the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such the Borrower, the Agents Agents, the Collateral Administrator, the Document Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c12.06(c), Section 13.06(d12.06(e), Section 13.06(e) 12.09 and Section 13.1712.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided . The Borrower agrees that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant shall be entitled to the benefits of Sections 2.09 and 12.03 (subject to the requirements and limitations therein, including the requirements under Section 12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Section; provided that such Participant shall not be entitled to receive any amount greater payment under Section 2.10Sections 2.09 or 12.03, 2.11with respect to any participation, or 13.03 which is greater than the amount the related its participating Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurredreceive, except to the extent such entitlement to receive a greater amount payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request USActive 59109857.10 and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.20 with respect to any Participant.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no . An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other rights and obligations under any Facility Documenthereunder) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is rights and obligations are in registered form under Section 5f.103-1(c) 1 of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and Agreement, each signature page hereto and hereto, each Assignment and Acceptance delivered to and accepted by it it, and a register (the “Register”) for the recordation of the names names, addresses and addresses wiring instructions of the Lenders and the aggregate outstanding principal amount of the outstanding Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents Collateral Manager, the Agents, the Collateral Administrator, the Document Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of this Agreementthe Facility Documents. The Register shall be available for inspection by the Borrower Borrower, the Collateral Manager, the Collateral Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each NoteNote with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts12.06.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, Document and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3), and (7) of Rule 501(a) under the Securities Act (an “Accredited Investor”) and a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender severally represents to the USActive 59109857.10 Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerPurchaser.
(f) Notwithstanding any other provision of this Section 13.0612.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Credit and Security Agreement (LGAM Private Credit LLC)
Assignability. (a) Each Lender may, with The rights and obligations of Seller under this Agreement and the other Transaction Documents and under any Transaction shall not be assigned by Seller without the prior written consent of the Administrative Agent and the BorrowerBuyer, which consent may be granted or withheld in Buyer’s sole discretion.
(b) Buyer may assign to an assignee all or a portion of its rights and obligations under this Agreement and the other Transaction Documents and/or under any Transaction or may issue one or more participation interests with respect to any or all of the Transactions, without the consent of, and without prior notice to, Seller, to any other Person, and, in connection therewith, may bifurcate or allocate (including all i.e. senior/subordinate) amounts owed to Buyer; provided, however, that, with respect to any such participation or a portion assignment, so long as no monetary Default, material non-monetary Default or Event of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
Default has occurred and is continuing (i) each unless Buyer has assigned one hundred percent (100%) of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) its interests under this Agreement, Seller shall not be unreasonably withheld obligated to deal directly with any party other than Buyer or delayed; its Affiliate in connection with such Transactions and Buyer or an Affiliate thereof shall retain final authority to enforce remedies and provide consents, waivers or approvals (provided that including, without limitation, approving any Eligible Loan as a Lender may not make Purchased Loan or any such assignment pursuant disapproval of extension of the Revolving Period) under this Agreement and to determine the Market Value for any Purchased Loan and the occurrence of a Mandatory Early Repurchase Event under this clause (i)(A) to a Disqualified Institution) Agreement, and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent Buyer shall not assign or grant participations in its rights and obligations hereunder to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in LawProhibited Transferee without Seller’s prior written consent. The parties to each such assignment shall execute and deliver In addition to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06foregoing, so long as no assignment by any Lender to the Borrower monetary Default, material non-monetary Default or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) , Buyer shall be permitted.
(b) Borrower may not assign (but, for avoidance of doubt, may sell participation interests in) its rights or and obligations hereunder or in this Agreement to any interest herein Person without the Seller’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, unless such Person is an Eligible Assignee. Notwithstanding the foregoing, if a monetary Default, material non-monetary Default or Event of Default has occurred and is continuing, Buyer may assign and/or grant participations in any and all of its rights and obligations to any Prohibited Transferee, without notice to or consent of the Agents Seller. Seller shall reasonably cooperate at Buyer’s sole cost and the Lenders.
(i) Any Lender mayexpense with Buyer in connection with any assignment or participation, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such LenderSeller’s obligations under this Agreement the Transaction Documents are not increased and its rights under the Transaction Documents are not impaired. Seller agrees that any assignee or participant shall remain unchanged, (C) such Lender shall remain solely responsible be entitled to the other parties hereto for the performance benefits of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e3(i) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 29 (subject to the requirements limitations and limitations set forth in Section 13.03, including the requirements under Section 13.03(g29 (it being understood that the applicable documentation required under Section 29(c) shall be delivered to the participating Buyer)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an that, no assignee under clause (a) of this Section 13.06 and (B) no Participant shall or participant will be entitled to any amount greater payment of Additional Amounts under Section 2.103(i) or Section 29, 2.11, than its assignor or 13.03 which is greater than the amount the related Lender participating Buyer would have been entitled to under any such Sections or provisions if receive with respect to the applicable participation had not occurredassigned or participated rights and obligations, except to the extent such entitlement to receive a greater amount payment or Additional Amounts results from a Change change in Law law that occurs after the Participant date such assignee or participant acquired its interest in the applicable participationTransaction Documents.
(iic) In Buyer shall, acting for this purpose as a non-fiduciary agent of Seller (the event that any Lender sells participations in any portion of its rights and obligations hereunder“Registrar”), such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register record of ownership (the “Register”) on which it enters is entered the name and address of all participants assignees of Buyer and each such assignee’s interest in the Advances held by it rights and obligations under this Agreement and the principal amount of other Transaction Documents. All assignments pursuant to Section 18 hereof shall be recorded on the Register. This provision is intended to be interpreted so that the indebtedness (and stated interest onfor federal income tax purposes, as set forth in Section 22(e)) evidenced by the Transaction Documents is treated as being in registered form in accordance with Section 5f.103-1(c) of the portion Treasury Regulations. The Register shall be available for inspection by Seller at any reasonable time and from time to time upon reasonable prior notice. The entries in the Register shall be conclusive absent manifest error, and Buyer and Seller shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer hereunder for all purposes of this Agreement. Buyer may, at any time, designate any other Person, including Seller, to be the Advance successor Registrar.
(d) Each Buyer that sells a participation shall, acting for this purpose as a non-fiduciary agent of Seller, maintain a register on which is entered the subject name and address of each participant and such participant’s interest in the participation rights and obligations under this Agreement and the other Transaction Documents (the “Participant Register”); provided that that, no Lender Buyer shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participantparticipant’s interest in any commitments, loans rights or its other obligations under any Facility Documentthis Agreement and the other Transaction Documents) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan rights or other obligation is obligations are in registered form under in accordance with Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a each Participant Register shall be conclusive absent manifest error, and such Lender the applicable Buyer shall treat each Person whose name is recorded in such Participant Register as the owner of such participation the related rights and obligations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything Subject to the contrary set forth herein or in any other Facility Documentforegoing, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) the other Transaction Documents and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser any Transactions shall be binding upon and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run inure to the benefit of the parties and be enforceable by their respective successors and assigns. Nothing in this Agreement or the Borrower.
(f) Notwithstanding other Transaction Documents, express or implied, shall give to any Person, other provision of this Section 13.06than the parties to the Transaction Documents and their respective successors and permitted assigns, any Lender may at any time pledge or grant a security interest in all benefit or any portion of its rights (including rights to payment of principal and interest) legal or equitable right, power, remedy or claim under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoTransaction Documents.
Appears in 1 contract
Sources: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding AmountCommitment); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.USActive 53861575.5 -136-
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Assignability. (a) Each Lender may, with the consent of the Administrative Agent The parties recognize and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided acknowledge that:
: (i) each Licensee’s performance hereunder will require, and the Company will rely upon, the exercise of the Borrower’s special creative skills, taste, personalities, industry standing and business acumen of the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayedpresent management and of those presently in control of Licensee; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the BorrowerCompany’s consent positive assessment, after extensive review, inquiry and investigation, of the creative skill, taste, personalities, industry standing and business acumen of Licensee’s present management and those presently in control of Licensee, specifically, J▇▇▇ ▇▇▇▇▇, has been a major factor in inducing the Company to enter into this Agreement, but for which assessment the Company could not have done so; (iii) the Company’s right to withhold approval of any and all Articles is an insufficient remedy to protect the Company from injury in the event performance hereunder were delegated to a third party who, in the Company’s judgment, did not possess all of the personal attributes described in subparagraphs (i) and (ii) of this paragraph, because the extensive exercise of such assignment pursuant right, if necessary to protect the prestige of each Licensed M▇▇▇, would frustrate the purpose of this Section 13.06(aAgreement and adversely affect the marketing and sale of other items of marked under the Licensed Marks; and (iii) the understanding and intent of the parties are that, under applicable law, this Agreement constitutes a personal service contract and that Licensee’s performance hereunder is non-delegable as a matter of law. In light of the foregoing and of the personal nature of Licensee’s performance hereunder, this Agreement shall not be required if (x) an Event of Default assigned by Licensee nor shall Licensee have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties right to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign sublicense its rights or obligations hereunder or any interest herein without hereunder, without, in either case, the prior written consent of the Agents and the Lenders.
(i) Any Lender mayCompany, without the which consent ofmay be withheld in its sole discretion, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under except that Licensee may assign this Agreement; provided that (A) , in its entirety, to a company wholly owned and controlled by J▇▇▇ ▇▇▇▇▇ for such participant time such company is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents wholly owned and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound controlled by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such J▇▇▇ ▇▇▇▇▇▇ , with the prior written consent by the Company, which consent may not be unreasonably withheld. The Company agrees to consider, in good faith, a request by Licensee for such consent; provided, however, that in light of, inter alia, the subjective nature of Licensee’s personal attributes upon which the Company will rely hereunder as nonfiduciary agent for described above, the Borrower Company shall maintain a register on which it enters have the name sole discretion to refuse such request. For the purpose of this Paragraph 16.6 (and address of all participants in addition to any direct assignment), any direct or indirect sale or transfer, or successive sales or transfers in the Advances held by it and the principal amount aggregate, of (and stated interest on) of the that portion of the Advance capital stock (or interests therein) of Licensee or the voting rights of such capital stock, or any merger, consolidation or similar combination entered into by Licensee or any parent corporation that limits or reduces the rights or abilities of current owners of Licensee to control the business and affairs of Licensee shall constitute an assignment of Licensee’s rights under this Agreement which is requires the subject prior written consent of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all Company. Any purported assignment, sublicense or any portion transfer in violation of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register this Paragraph 16.6 shall be conclusive absent manifest error, void and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrowereffect, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy be an event of default under this Agreement and each signature page hereto and each Assignment and Acceptance delivered shall give the Company the right to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of terminate this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) Each Lender may, with The obligations of a party shall be binding upon and the consent rights of the Administrative Agent party shall inure to the benefit of permitted successors and permitted assigns of the Borrowerparty, assign to an assignee all or a portion provided that any purported assignment of its rights and obligations under this Agreement (including all or a any portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders thereof made in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision violation of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) section shall be permitted.
(b) Borrower may void ab initio. This Agreement is not assign its rights assignable, in whole or obligations hereunder or any interest herein in part, by either party without the prior written consent of the Agents other party except as specifically set forth in (a) and (b) below:
(a) In the Lenderscase of NMC, NMC shall be permitted to assign to any Affiliate of NMC all or any part of this Agreement, including assignment of any rights of NMC and delegation of any obligations of NMC hereunder, without prior consent of USGC.
(ib) Any Lender mayIn the case of USGC, without the consent ofprovided that USGC is not in breach of this Agreement then USGC shall be permitted to assign USGC's entire interest in this Agreement, but with notice to, the Borrower, sell participations to Participants in including all or a portion of such Lender’s rights and obligations under this Agreement; of USGC hereunder, to any Person acquiring a majority equity interest, directly or indirectly, in the Tonkin Springs Property, provided that (A) such participant is assignment by USGC shall not be effective until the assignee has agreed in a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible writing signed by the assignee and delivered to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed NMC to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes terms of this Agreement notwithstanding any in the place of USGC. USGC shall give NMC at least thirty (30) days advance written notice prior to the contrarymaking such an assignment. For the avoidance of doubtFollowing proper assignment, the Administrative Agent assignee shall be liable to NMC for all obligations of USGC, whether accruing prior to or following the assignment, and USGC shall have continuing liability to NMC to an extent as provided in subsections (in its capacity b) and (c) of section 9.2 as Administrative Agent) if the Agreement had been terminated with respect to USGC as of the date of the Assignment and this continuing liability of USGC following the assignment shall be joint and several with the assignee. Following a permitted assignment by USGC, NMC shall have no responsibility further obligations under Article 4 and shall have no further obligation to pay for maintaining legal defense costs under section 7.6, unless NMC otherwise agrees in a Participant Register.
(d) The Administrative Agentwriting signed by NMC. Acquisition by a Third Party, on behalf directly or indirectly, of and acting solely for this purpose as a majority interest in USGC or a majority equity interest in the nonfiduciary agent of the BorrowerTonkin Springs Property, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy be deemed an assignment of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsUSGC.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Sources: Non Exclusive Technology License Agreement (U S Gold Corp)
Assignability. (a) No Borrower shall have the right to assign this Credit Agreement or any interest therein except with the prior written consent of the Lenders.
(b) Notwithstanding subsection (c) of this Section 13.6, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender's Loans and/or Commitments hereunder to its parent company and/or to any affiliate of such Lender or to any existing Lender or affiliate thereof. Any Lender may make, carry or transfer Revolving Loans at, to or for the account of, any of its branch offices or the office of an affiliate of such Lender except to the extent such transfer would result in increased costs to the Borrowers.
(c) Each Lender may, with the consent of the Administrative Agent and and, prior to the Borroweroccurrence of an Event of Default hereunder, the Company (such consent not to be unreasonably withheld or delayed), but without the consent of any other Lender, assign to an assignee one or more banks or other financial institutions all or a portion of its rights and obligations under this Credit Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount)and the Revolving Notes; provided that:
that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to for each such assignment assignment, the parties thereto shall execute and deliver to the Administrative Agent Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with any Revolving Note or Revolving Notes subject to such assignment and a copy processing and recordation fee of $3,500 to be paid by the assignee, (ii) no such assignment shall be for less than $5,000,000 of a Lender's Commitment (or the remaining amount of such Lender's Commitment, if less) and (iii) if such assignee is a Foreign Lender, all of the requirements of Section 2.7(b) shall have been satisfied as a condition to such assignment. Upon such execution and delivery of the Assignment and Acceptance to the Collateral Agent, from and after the date specified as the effective date in the Assignment and Acceptance (the "Acceptance Date"), (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 13.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in covering all or a the remaining portion of such an assigning Lender’s 's rights and obligations under this Credit Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed cease to be bound by this Section 13.06(ca party hereto), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Revolving Notes or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no 66 73 representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or the performance or observance by the Borrowers of any of its obligations under this Credit Agreement or any other instrument or document furnished pursuant hereto, (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the financial statements referred to in Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf of and acting solely for to exercise such powers under this purpose Credit Agreement as are delegated to the nonfiduciary agent Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the Borrower, obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender.
(e) The Agent shall maintain at its address specified referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, 13.5 a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding Commitments of, and principal amount of the outstanding Advances maintained by Revolving Loans owing to, each Lender under this Agreement from time to time (and any stated interest thereonthe "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Agents Agent and the Lenders shall may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the Borrower Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Notwithstanding Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together with the Revolving Note or Revolving Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers. Within five (5) Business Days after its receipt of such notice, the Borrowers shall execute and deliver to the Agent in exchange for the surrendered Revolving Note or Revolving Notes (which the assigning Lender agrees to promptly deliver to the Company) a new Revolving Note or Revolving Notes to the order of the assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Revolving Note or Revolving Notes to the order of the assigning Lender in an amount equal to the Commitment or Commitments retained by it hereunder. Such new Revolving Note or Revolving Notes shall re-evidence the indebtedness outstanding under the old Revolving Notes or Revolving Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Note or Revolving Notes, shall be dated the Closing Date and shall otherwise be in substantially the form of the Revolving Note or Revolving Notes subject to such assignments.
(g) Each Lender may sell participations (without the consent of the Agent, the Borrowers or any other provision of this Section 13.06, any Lender may at any time pledge Lender) to one or grant a security interest more parties in or to all or any a portion of its rights and obligations under this Credit Agreement (including including, without limitation, all or a portion of its Commitments, the Revolving Loans owing to it and the Revolving Note or Revolving Notes held by it); provided that (i) such Lender's obligations under this Credit Agreement (including, without limitation, its Commitments to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Revolving Note for all purposes of this Credit Agreement, (iv) the Borrowers, the Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to payment approve any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Revolving Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal and interestof the Revolving Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) under except as otherwise expressly provided in this Agreement Credit Agreement, reduce the interest rate applicable to secure the Revolving Loans or Letter of Credit reimbursement obligations of in which such Lenderparticipant is participating, including or (D) except as otherwise expressly provided in this Credit Agreement, reduce any pledge or security interest granted to a Federal Reserve BankFees payable hereunder.
(h) Each Lender agrees that, without notice to or the prior written consent of the Borrower Borrowers and the Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Revolving Loan, Revolving Note or other Obligation under the Administrative Agent; provided that no such pledge securities laws of the United States of America or grant of a security interest shall release any jurisdiction.
(i) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, such Lender from may disclose any of information in its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretopossession regarding the Borrowers.
Appears in 1 contract
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, APA Purchaser may assign to an assignee any Eligible Assignee (defined below) or to any other existing APA Purchaser all or a portion of its rights and obligations under this Asset Purchase Agreement (including including, without limitation, all or a portion of its outstanding Advances or interests therein Purchase Commitment and any Percentage Interests owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided PROVIDED, HOWEVER, that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall be of a constant, and not be unreasonably withheld or delayed; (provided that a Lender may not make any varying, percentage of all of such assignment pursuant to APA Purchaser's rights and obligations under this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andAsset Purchase Agreement,
(ii) the Borrower’s consent to any such assignment amount of unused Maximum Purchase and/or Purchased Interest being assigned pursuant to this Section 13.06(aeach assignment shall in no event be less than the lesser of $10,000,000 and the assigning APA Purchaser's Maximum Purchase, and
(iii) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (Agent, for its acceptance and recording in the Register, an Assignment of Purchase Commitment in the form of Exhibit A attached hereto, together with a copy processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in the Assignment of Purchase Commitment, (x) the assignee thereunder shall be a party hereto and, to the Collateral Agentextent that rights and obligations hereunder have been assigned to it pursuant to this Asset Purchase Agreement, have the rights and obligations of an APA Purchaser hereunder and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to this Asset Purchase Agreement, relinquish its rights and be released from its obligations under this Asset Purchase Agreement (and, in the case of an Assignment assignment covering all or the remaining portion of an assigning APA Purchaser's rights and Acceptance and the applicable tax forms required by Section 13.03(gobligations under this Asset Purchase Agreement, such APA Purchaser shall cease to be a party hereto). Notwithstanding any other provision of this Section 13.06the foregoing, no assignment by any Lender hereunder shall be effective unless (i) the documents evidencing such assignment are satisfactory to ▇▇▇▇▇'▇ and S&P and (ii) the assignee has delivered to ▇▇▇▇▇'▇ and S&P an opinion of counsel to the Borrower or any assignee satisfactory to each of its Affiliates or any Disqualified Institution (except if an Event ▇▇▇▇▇'▇ and S&P stating that the obligations of Default has occurred the assignee under this Asset Purchase Agreement are the legal, valid and is continuing) shall be permittedbinding obligations of the assignee, enforceable against the assignee in accordance with their terms.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent For purposes of the Agents and the Lenders.
this Asset Purchase Agreement, (i) Any Lender maythe term "APA PURCHASER" shall mean a party executing a counterpart of a signature page hereto and each Eligible Assignee that shall become a party to this Asset Purchase Agreement pursuant to this Section 9, without and (ii) the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that term "ELIGIBLE ASSIGNEE" shall mean any Person which (A) such participant is not a Disqualified Lenderreasonably acceptable to the Agent, (B) such Lender’s obligations under this Agreement is approved by OFL which approval shall remain unchangednot be unreasonably withheld, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, either (Dx) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound has short-term debt rated at least "P-1" by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇'▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held "A-1+" by it S&P or (y) is acceptable to ▇▇▇▇▇'▇ and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower S&P and (D) any such representations or agreements shall run to the benefit executes an Assignment of and be enforceable by the BorrowerPurchase Commitment.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
Appears in 1 contract
Assignability. (a) Each Lender mayThis Agreement and the Issuer's rights and obligations herein (including ownership of the Purchased Interest or an interest therein) shall be assignable, in whole or in part, by the Issuer and its successors and assigns with the prior written consent of the Administrative Agent and the BorrowerSeller; PROVIDED, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by itHOWEVER, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each of the Borrower’s and the Administrative Agent’s that such consent to any such assignment (A) shall not be unreasonably withheld or delayedwithheld; (provided and PROVIDED FURTHER, that a Lender may not make any no such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) consent shall not be required if the assignee assignment is a Permitted Assignee with respect made to such assignor; and
BNS, any Affiliate of BNS, any Purchaser or other Program Support Provider or any Person that is: (i) in the business of issuing Notes and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived associated with or administered by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower BNS or any Affiliate of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permittedBNS.
(b) Borrower The Issuer may at any time grant to one or more banks or other institutions (each a "Purchaser") party to the Liquidity Agreement, or to any other Program Support Provider, participating interests in the Purchased Interest. In the event of any such grant by the Issuer of a participating interest to a Purchaser or other Program Support Provider, the Issuer shall remain responsible for the performance of its obligations hereunder and except as otherwise provided herein, Seller and Servicer shall continue to deal with Issuer as if Issuer had not granted such participating interest. The Seller agrees that each Purchaser or other Program Support Provider shall be entitled to the benefits of SECTIONS 1.8 and 1.9.
(c) This Agreement and the rights and obligations of the Administrator hereunder shall be assignable, in whole or in part, by the Administrator and its successors and assigns; PROVIDED, that unless: (i) such assignment is to an Affiliate of BNS, (ii) it becomes unlawful for BNS to serve as the Administrator or (iii) a Termination Event exists, the Seller has consented to such assignment, which consent shall not be unreasonably withheld.
(d) Except as provided in SECTION 4.1(d), none of the Seller, Keebler or the Servicer may assign its rights or delegate its obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsAdministrator.
(e) Notwithstanding anything to the contrary set forth herein or in Without limiting any other Facility Documentrights that may be available under applicable law, each Lender hereunder, and each Participant, must at all times the rights of the Issuer may be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that enforced through it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borroweragents.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
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