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 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 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 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 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. 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) 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. (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) 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) 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 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 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 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 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 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 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 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) 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. (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) 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 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. 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) 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 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 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 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) 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 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 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. (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 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 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. 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 1 contract
Assignability. The provisions of Paragraph 15 of the Master Repurchase Agreement are hereby modified and superseded in their respective entireties by the following provisions of this Section 16:
(a) Each Lender may, with The rights and obligations of Seller under the Transaction Documents may not be assigned without the prior written consent of Buyer. Buyer or any Beneficial Purchaser may assign its rights and obligations under the Transaction Documents or the Co-Purchaser Agreement without the consent of Seller; provided that Buyer or such Beneficial Purchaser shall give Seller written notice of any such assignment no later than the Administrative Agent time of consummation thereof. Any such assignment shall not modify or affect in any manner the rights or obligations of any non-assigning party under the Transaction Documents. In the event of any assignment of any of the rights and obligations originally held by Buyer under the Borrower, assign to Agreement (other than an assignee assignment of all or any portion of Buyer's beneficial interest in the Purchased Securities and its rights under the Agreement that is effected pursuant to the Co-Purchaser Agreement), (i) the assignee shall be deemed to be a portion party to the Agreement to the extent of the rights and obligations assigned to it and (ii) the assignor shall be relieved of its obligations under the Agreement to the extent so assigned and, in the event of an assignment of all of its rights and obligations under this Agreement the Agreement, such assignor shall cease to be a party to the Agreement; provided, however, that in each such case (including all or a portion x) the assignor shall remain bound by the provisions of its outstanding Advances or interests therein owned by itSection 20(e), together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
and (iy) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) assignor shall not be unreasonably withheld or delayed; (provided relieved of liability for any material misrepresentations that it made while 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 party 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 permittedAgreement.
(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 Beneficial Purchaser shall be entitled to issue one or more participation interests with respect to the Transaction; provided, however, that (i) in any amount under Section 2.10dealings with Seller in connection with the Transaction, 2.11, or 13.03 each Beneficial Purchaser shall act as exclusive agent for all such participants which is greater than the amount the related Lender would have been entitled to under purchased any such Sections or provisions if the applicable participation had not occurredinterests from it, 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.
and (ii) In the event that Seller shall not be obligated to deal directly with any Lender sells participations in any portion of its rights and obligations hereunderparty other than Buyer, 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 Beneficial Purchasers in connection with 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 AmountsTransaction.
(ec) Notwithstanding anything Subject to the contrary set forth herein or in any other Facility Documentforegoing, each Lender hereunder, the Transaction Documents and each Participant, must at all times the Transaction shall be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) binding upon 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 Buyer, Seller, the Beneficial Purchasers and be enforceable by their respective successors and permitted assigns. Nothing in the Borrower.
(f) Notwithstanding Transaction Documents, express or implied, shall give to any Person, other provision of this Section 13.06than the parties to the Transaction Documents, the Beneficial Purchasers 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
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 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 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 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 At all times during 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 Loan 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 doubtoutstanding, 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 10.02 of this Agreement (or such other address as of the Administrative Agent shall designate in writing notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The names and addresses of the Lenders, a copy the Aggregate Loan Principal Balance (and stated interest) and any interests therein, and any Assignments and Acceptances of this Agreement and each signature page hereto and each Assignment and Acceptance the Aggregate Loan Principal Balance or any interest therein delivered to and accepted by it the Administrative Agent, shall be registered in the Register, and the Register shall serve as a register (record of ownership that identifies the “Register”) for the recordation owner of the names Aggregate Loan Principal Balances and addresses any interest therein. Notwithstanding any other provision of this Agreement, no transfer of the Lenders Aggregate Loan Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the aggregate outstanding principal amount of 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 BorrowerBorrowers, the Agents Administrative Agent and the Lenders shall 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(c) 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(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register 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
(d) Upon its receipt of an Assignment and a NoteAcceptance, the Administrative 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 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 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 written notice thereof to the Borrower Borrowers 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 Calculation 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 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 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 LawLaw (provided that each Lender shall use its commercially reasonable efforts to not make any such assignment pursuant to this clause (y) to a Disqualified Institution). 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, (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 Participant is not a Disqualified Institution. 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 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, notwithstanding any notice to the contrary. 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: Credit Agreement (T. Rowe Price OHA Select Private Credit Fund)
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 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 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 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) 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.
Appears in 1 contract
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 any Seller Party 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 Program Documents to a Permitted Assignee pursuant to an executed assignment and acceptance by Buyer and assignee (including all “Assignment and Acceptance”), specifying the percentage or a portion of its outstanding Advances or interests therein owned by it, together such rights and obligations assigned with ratable portions the prior written consent 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) Seller which shall not be required (i) if the assignee is a Permitted Assignee with respect Buyer assigns to such assignor; and
an Affiliate or (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. Upon such assignment, (a) such Permitted Assignee shall be permitted.
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) Borrower may not assign Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its rights or obligations hereunder and under the Program Documents. 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 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, other information delivered to Buyer by Seller. Buyer may sell participations to Participants one or more Persons in or to all or a portion of such Lender’s its 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 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; ‑27‑ provided that such Lender shall retain assignee or participant agrees to hold such information subject to the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision confidentiality provisions 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 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 BorrowerAgreements for 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 Purchaser shall not assign this Agreement without first obtaining Seller’s written consent, provided however, that Purchaser may, without Seller’s consent, but with no less than five (5) business days written notice to Seller which notice will include the consent name of the Administrative Agent such assignee and the Borrowernames of all principals and entities owning twenty-five percent (25%) or more of such assignee, assign this Agreement to an assignee all “Affiliate” of Purchaser or a portion designate an “Affiliate” to take title, to the Property at Closing. “Affiliate” means any entity that is owned or controlled by an entity of its rights which the general partners, managers or voting members are at least fifty-one (51%) percent owned or controlled by principals of Purchaser, and obligations shall include trusts or other estate planning entities created for the benefit of such principals and their immediate family members. Any assignment in contravention of this provision shall be void. No assignment, whether or not permitted, shall release the Purchaser herein named from any obligation or liability under this Agreement (including Agreement. The Purchaser and any permitted assignee shall be jointly and severally liable for all or a portion of its outstanding Advances or interests therein owned such obligations and liabilities. Any permitted assignee shall be deemed to have made any and all representations and warranties made by itPurchaser hereunder, 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 as if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) were the Borrower’s consent to original signatory hereto. Purchaser acknowledges that 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) assignee 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 subject to Participants in all or a portion of such LenderSeller’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 verification that such Lender shall retain assignee can make 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 representation set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees 5.3.8. If Purchaser requests Seller’s consent to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) assignment of this Section 13.06 and Agreement, Purchaser shall (Bi) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than notify Seller in writing of 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.
proposed assignment; (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 provide Seller with the name and address of all participants in the Advances held by it proposed assignee; (iii) provide Seller with financial information, including current financial statements, for the proposed assignee; and the principal amount of (and stated interest oniv) 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 provide Seller with 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) copy of the proposed United States Treasury Regulationsinstrument of assignment. The entries Any transfer or assignment of any membership or other beneficial interest of Purchaser in a Participant Register excess of forty-nine percent (49%) shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as deemed an assignment within 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 meaning 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 hereto11.4.
Appears in 1 contract
Sources: Purchase and Sale Agreement (New England Realty Associates Limited Partnership)
Assignability. (a) The Borrower shall not have the right to assign this Agreement or any interest therein except with the prior written consent of the Agent and the Lenders.
(b) Notwithstanding Section 14.06(c) below, without the consent of the Agent and the Borrower (i) 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 or (ii) any Lender may pledge any Loans or Notes to any Federal Reserve Bank.
(c) Each Lender may, with the consent of the Administrative Agent and the BorrowerBorrower (which consent will not be unreasonably withheld or delayed), assign to an assignee one or more 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 itrespective Commitment; 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 for acceptance and recording by the Agent in the Register (with a copy to the Collateral Agent) as defined below), an Assignment and Acceptance Assumption Agreement substantially in the form of Exhibit "M" (each an "ASSIGNMENT AND ASSUMPTION AGREEMENT"), together with any Note subject to such assignment and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision a processing and recordation fee of this Section 13.06$2,500, 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) which, unless otherwise agreed, shall be permitted.
payable by the assignor, and (bii) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent no such assignment shall be for less than one hundred percent (100%) 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 Commitment of such Lender’s , unless such assignment is to a then-current holder of a Note. Upon the effectiveness of the Assignment and Assumption Agreement as provided therein, from and after the date specified as the effective date in the Assignment and Assumption Agreement (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 Assumption Agreement, 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 Assumption Agreement, relinquish its rights (other than any rights it may have pursuant to Sections 14.02 and 14.10 which will survive such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Agreement covering all or the remaining portion of an assigning 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) the Notes and the other Loan Documents such Lender shall remain solely responsible cease to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents be a party hereto). Agent and the other Lenders shall continue to deal solely and directly with such each Lender agrees that in connection with any such Lender’s rights assignment, they will exert good faith efforts to assure that Borrower 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 (are not subject to Florida documentary stamp or transfer taxes by reason of such assignment. If however after the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) exertion of good faith efforts such Participant agrees assignment is found 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 such taxes, Borrower shall be entitled obligated to pay same and any amount under Section 2.10interest, 2.11, penalties 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 fees 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 Registerconnection therewith.
(d) 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 in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, Principal Office 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 principal amount Commitments of the outstanding Advances maintained by each Lender under this Agreement from time to time (and any stated interest thereonthe "REGISTER"). The entries in the Register Agent shall be conclusive and binding for all purposes, absent manifest error, and the give notice to each Lender of any assignment. 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 notice 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 AmountsAgent.
(e) Notwithstanding anything Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender, together with each Note subject to such assignment (the contrary set forth herein or "SURRENDERED NOTE"), the Agent shall, if such Assignment and Assumption Agreement has been completed and is in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in substantially 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 Borrowerform of Exhibit "M", (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 Assumption 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 participationRegister, (Biii) 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 (Div) any revise the information set forth on Annex I to reflect the effect of such representations or agreements Assignment and Assumption Agreement, and distribute a copy of such revised Annex I to each Lender and the Borrower. Within five Business Days after its receipt of such notice, the Borrower shall run acknowledge such Assignment and Assumption Agreement and shall execute and deliver to the benefit Agent in exchange for the Surrendered Note or Notes 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 Assumption Agreement 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 Note or Notes and shall be enforceable in 60 an aggregate principal amount equal to the aggregate principal amount of such Surrendered Note or Surrendered Notes, shall be dated the Agreement Date and shall otherwise be in substantially the form, of the Note or Notes subject to such assignments. The assignment by a Lender of a Commitment or portion thereof to another Person and the execution and delivery of a new Note or Notes shall not constitute a novation of the indebtedness evidenced by the BorrowerSurrendered Note or Surrendered Notes and incurred in connection with such assigned Commitment.
(f) Notwithstanding any other provision of this Section 13.06, any Each Lender may at sell participations (PROVIDED, HOWEVER, that prior to selling any time pledge such participations, such Lender shall have given the prior written notice to the Agent and the Borrower of such participation) to one or grant a security interest more parties in or 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 Commitment, the Loans owing to secure it and the Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment 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 Note for all purposes of this 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 Agreement and (v) such Lender shall not transfer, including grant, assign or sell any pledge participation under which the participant shall have rights to approve any amendment or security waiver of this Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date of the payments of any installment of fees or principal or interest granted of any Loans or Reimbursement Obligations in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans or Reimbursement Obligations in which such participant is participating, (C) reduce the interest rate applicable to a Federal Reserve Bankthe Loans or Reimbursement Obligations in which such participant is participating, or (D) except as otherwise expressly provided in this Agreement, reduce any fees payable to the Lenders hereunder.
(g) 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 or Note 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 other jurisdiction.
(h) 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 possession regarding the Borrower; PROVIDED, HOWEVER, that prior to disclosing any such pledgee or grantee for information, such Lender as a party heretoshall receive the prior written consent of the Agent.
Appears in 1 contract
Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the Borrower, 6.1 Neither Party may grant or assign to an assignee all any rights or a portion of its rights and obligations delegate any duties 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 Third Party without the prior written consent of the Agents other, which shall not be unreasonably withheld, and the Lenders.
(i) Any Lender any attempted assignment without such consent shall be null and void; provided, however, that a Party may, without the consent ofsuch consent, 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 assign 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, 2.11its entirety, 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 to the Borrower shall maintain successor in interest to the Party in connection with a register on which it enters the name and address Change of all participants in the Advances held by it and the principal amount of (and stated interest on) Control of the portion Party. The acquired Party shall give the other Party prompt written notice of any Change of Control of the Advance which is Party. However, any rights assigned by a Party to an acquiring Third Party shall not extend beyond those possessed by the subject Party at the time of the participation (acquisition and shall exclude the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion acquiring Third Party’s business at the time 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 contraryacquisition. For the avoidance of doubt, a sale or other transfer of one or more Licensed Patents and/or Unlicensed Patents to a Third-Party shall not constitute an assignment requiring written consent under this Section so long as such sale or transfer to a Third-Party is made subject to the Administrative Agent (in its capacity as Administrative Agent) rights and covenants contained herein. All license rights and covenants contained herein shall have no responsibility for maintaining a Participant Registerrun with the Licensed Patents and/or Unlicensed Patents and shall be binding on any successors-in-interest or assigns thereof.
(d) The Administrative Agent6.2 For the avoidance of doubt, on behalf in the event that ZTE or any ZTE Affiliate separates, disposes of, or otherwise ceases to control one or more of and acting solely for this purpose as the nonfiduciary agent its businesses, product lines, or any 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 ZTE Affiliates themselves (the “RegisterSeparated Entity”) for the recordation ), whether by way of the names a sale, assignment, stock purchase, merger, establishment of a joint venture, spin-off, or otherwise (a “Separation Event”), such a Separation Event shall not constitute an assignment of any rights that would require Vringo’s prior written consent, and addresses of the Lenders neither ZTE nor any ZTE Affiliate shall lose or have its rights, licenses and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender covenants 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 terminated or impaired 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 result of such assignment or sale on a Separation Event. Notwithstanding 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 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 following the occurrence of a Separation Event, any right, license, release or covenant shall 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 subject to the Borrowerfuture limitation that such right, (i) on the date license, release or covenant for such Separated Entity shall extend only to a ZTE Licensed Product 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 was first commercially sold by ZTE or its Affiliates prior to the time occurrence of such assignment Separation Event, or participation, (B) is a customary line extension or natural evolution of a product described in the preceding clause (A), but in no event shall any such Person agrees right, license, release, or covenant extend to a ZTE Licensed Product that it will be bound is combined, merged, incorporated in or sold with a product, component or device of a Third Party. Portions of this Exhibit, indicated by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall m▇▇▇ “[***],” were omitted and have been furnished filed separately with the Secretary of the Commission pursuant to the Borrower and (D) any such representations or agreements shall run Registrant’s application requesting confidential treatment pursuant 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 Rule 24b-2 of the Borrower or the Administrative Agent; provided that no such pledge or grant Securities Exchange Act of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender 1934, as a party heretoamended.
Appears in 1 contract
Sources: Settlement Agreement (Vringo Inc)
Assignability. (a) This Agreement and the Conduit Lender's rights and obligations herein (including the outstanding Advances) shall be assignable by the 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) the Conduit Lender shall not assign its obligations under this Agreement to any Person other than to a U.S. Affiliate of the Program Agent 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 Lender 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 Lender, 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.
(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 and the applicable tax forms required by Section 13.03(g)Acceptance. Notwithstanding any other provision of this Section 13.06the foregoing, no assignment by any each Secondary Lender to the Borrower or may assign any of its Affiliates 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 any Disqualified Institution consent of the Borrower.
(except c) The Program Agent may, with the consent of the Borrower (which consent shall not be unreasonably withheld or 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 permitted.required if the assignee is a U.S. Affiliate of the Program Agent. 57
(bd) Except for an assignment by operation of law to the extent expressly permitted by Section 5.02(d), 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 Secondary Lenders.
(ie) Any Lender mayThe Borrower acknowledges and agrees that each Lender's (other than the Conduit Lender) and each Secondary Lender's source of funds may derive in part from its participants. Accordingly, without the consent ofreferences in Sections 2.06, but with notice to2.07, the Borrower2.08, sell participations to Participants in all or a portion of such Lender’s rights 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 the other Program Documents (Eother than the Loan Documents) each Participant shall have agreed to be bound by this Section 13.06(c)rates, Section 13.06(d)determinations, Section 13.06(ereserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders (other than the Conduit Lender) and Section 13.17. Any agreement pursuant the Secondary Lenders shall be deemed also to which a Lender sells such a participation shall provide include those of each of its participants; provided, 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 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 or Secondary 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.
(df) 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 Conduit Lender and Secondary 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 such Secondary Lenders, their Secondary Lender Commitments, effective dates and Secondary Lender Stated Expiration Dates, and the aggregate outstanding principal amount of the outstanding Advances maintained made by each such Secondary 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 and the Secondary Lenders shall may treat each Person whose name is recorded in the Register as a Secondary Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Secondary 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) 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 permitted.
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 (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 Acceptance, relinquish its rights or (other than any rights it may have pursuant to Section 14.8 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 Acceptance 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) Upon the occurrence and during the continuation of any Event of Default, the Term B Lenders shall have the option to require any Lender that is not participating in the Term B Loans to assign, at par plus all 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 Administrative 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 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.
(f) 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, 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 each 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 Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the each 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.
(eg) Notwithstanding anything Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together with the Note or Notes subject to such assignment, the contrary set forth herein or Agent shall, if such Assignment and Acceptance has been completed and is in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in substantially 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 Borrowerform of Exhibit B hereto, (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 each 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.. Within five
Appears in 1 contract
Sources: Credit Agreement (Chiquita Brands International Inc)
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 Borrowers.
(c) Each Lender may, with the consent of Agent which consent shall not be unreasonably withheld, but without the Administrative Agent and the Borrowerconsent of any other Lender nor Borrower Representative, 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, 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 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 '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 Borrowers or any other Obligor or the performance or observance by Borrowers or any other Obligor of its obligations under this Agreement and the Other Agreement, (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 (Aiii) such Participant agrees to be subject to the provisions of Section 13.03(g) as if assignee confirms that 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, has received a copy of this Agreement and each signature page hereto 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding Revolving Loan Commitments and Term 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 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 Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the Borrower Borrowers, 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 Borrower Representative. Within five (5) Business Days after Borrower Representative's 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 provision Lender) to one or more parties, in or to all (or a portion) of its rights and obligations under this Section 13.06Agreement (including, any Lender may at any time pledge or grant a security interest in without limitation, all or any a portion of its rights Revolving Loan Commitment and Term Loan Commitment, or the Loans owing to it); provided, that (including rights to payment of principal and interesti) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to secure obligations the other parties hereto for the performance of such obligations, (iii) 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 (iv) such Lender shall not transfer, including 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 Borrowers 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 or substitute any such pledgee or grantee for such Lender as a party heretopossession regarding Borrowers.
Appears in 1 contract
Sources: Loan and Security Agreement (Amcon Distributing Co)
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 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 ten (10) 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 (1) a Permitted Assignee with respect Lender or any of its Affiliates or (2) managed by a Lender or any of its Affiliates;
(ii) notwithstanding anything herein to the contrary, each Lender may make an assignment to any Person without the consent of the Borrower or the Administrative Agent if such assignorLender makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law (including, without limitation, the ▇▇▇▇▇▇▇ Rule); and
(iiiii) 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 Lawbe 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 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 or an Affiliate of Citibank, N.A.). Notwithstanding any other provision of this Section 13.0612.06, (x) 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, and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y).
(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 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 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 ▇▇▇▇▇▇ 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 or for the proposed United States Treasury RegulationsBorrower, any Agent, the Collateral Administrator, the Custodian or the Securities Intermediary to satisfy any information reporting requirement with respect to payments made to such Participant. 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 12.02 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 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 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 for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrower, 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 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.
Appears in 1 contract
Sources: Credit and Security Agreement (Bain Capital Specialty Finance, Inc.)
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 14.5, 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 Credit Agreement and any Notes held by it; provided, however, that (including all or i) the Borrower shall be deemed to have given its consent five (5) Business Days after the date written notice thereof has been delivered to the Borrower by the assigning Lender (through the Agent) unless such consent is expressly refused by the Borrower prior to such fifth (5th) Business Day, (ii) any such assignment of a portion of its outstanding Advances or interests therein owned by it, together with ratable portions Revolving Loans and Revolving Credit Commitments must be for a constant and non varying portion of its Individual Lender Maximum Funding Amount); provided that:
Revolving Loans and Revolving Credit Commitments, (iiii) 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, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 to be paid by the applicable tax forms required by Section 13.03(gassignee, (iv) no such assignment shall be for less than $4,000,000 or, if less, the entire remaining Revolving Credit Commitments of such Lender of the Revolving Credit Commitments (or, with respect to Swing Loans, 100% thereof and of the commitment (if any) to make Swing Loans). Notwithstanding any other provision , (v) the consent of this Section 13.06, no assignment by any Lender the Issuing Bank (such consent not to the Borrower be unreasonably withheld or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuingdelayed) shall be permitted.
required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (bwhether or not then outstanding) Borrower may and (vi) if such assignee is a Foreign Lender, all of the requirements of Section 2.6(b) shall have been satisfied as a condition to such assignment; and provided, further, that any assignment to an Approved Assignee shall not assign be subject to the minimum assignment amounts specified herein. Upon such execution and delivery of the Assignment and Assumption to the Agent, from and after 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 Assumption, 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 Assumption, relinquish its rights or (other than any rights it may have pursuant to Section 14.7 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, 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 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 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 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 14.4 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 Revolving Credit 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 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 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, together with any Note or Notes subject to such assignment, 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. Within five (5) Business Days after its receipt of such notice, if requested by the assignee, the Borrower shall execute and deliver to the Agent in exchange for any surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to the Borrower) a new Note or Notes to the assignee in an amount equal to the Revolving Credit Commitment (and commitment to make Swing Loans, if applicable) assumed by it pursuant to such Assignment and Assumption and, if the assigning Lender has retained a Revolving Credit Commitment owing to it hereunder and if requested by it, a new Note or Notes to the assigning Lender in an amount equal to the Revolving Credit Commitment retained by it hereunder. Any such new Note or Notes shall re-evidence the indebtedness outstanding under any old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of any such surrendered Note or Notes (or in the case of a Revolving Credit Commitment, if none, the amount of the Revolving Credit Commitments so assigned), shall be dated the Closing Date and shall otherwise be in substantially the form of any Note or Notes subject to such assignments.
(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 (x) the Credit Parties, or any of the Credit Parties’ Affiliates, financial sponsors or Subsidiaries, (y) any Defaulting Lender or (z) a natural Person (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 Revolving Credit Commitments, the Loans owing to it and any 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 Revolving Credit 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 Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) 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 2.6(c) shall be delivered to the participating Lender) and (Ev) 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 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 the Loans or Letter of Credit reimbursement obligations in which such Participant is participating, 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 the benefits of Sections 4.7, 4.10 and 2.6 (subject to the requirements and limitations therein, including the requirements under Section 2.6(e) (it being understood that the documentation required under Section 2.6(e) shall be bound by this Section 13.06(cdelivered to the participating Lender), 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 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) 2.10 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 2.6 or 4.7, 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 '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, Note 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 and participations in Letters of Credit and Swing 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 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 Credit Agreement until 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 Amountsoccurs.
(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: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
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 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.portions
(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)16.09 and 15.1516.20 and (E) each Participant shall have a short term rating of at least “A-2/P2” by S&P and Moody’s, 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 (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.paragraph
(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 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 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 (Monroe Capital Income Plus Corp)
Assignability. (a) Each Lender may, with the written 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 five (5) 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);
(iii) no assignment shall be made to a natural person;
(iv) no assignment shall be made to (x) a Borrower or any of its Affiliates or Subsidiaries or (y) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y);
(v) except in the case of an assignment to a Lender or an Affiliate of a Lender or a Permitted Assignee or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Advances of any class, the amount of the Commitment or Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(vi) each partial assignment shall be made as an assignment of a result proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one class of Commitments or Advances;
(vii) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and Applicable Laws, including Federal and state securities laws; and
(viii) in connection with any assignment of rights and obligations of any Change Defaulting Lender hereunder, no such assignment shall be effective unless and until, in Lawaddition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative 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 Administrative Agent, the applicable pro rata share of Advances 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 Administrative Agent and each Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its Percentage. 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 paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. 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) and (j), together with a processing and recordation fee of $3,500, 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 13.0615.06, 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 Administrative Agent 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 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(e15.06(c) and Section 13.17Sections 14.09(b) and 14.15 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 15.06(f) with respect to any Participant. Sections 2.102.09, 2.11, 2.16 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 2.10Sections 2.09, 2.11, 2.16 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.
(iid) 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 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 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.
(de) 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 15.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement Agreement, the Administrative Questionnaire 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 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 Amounts15.06.
(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, (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 1 contract
Sources: Revolving Credit and Security Agreement (Newtek Business Services Corp.)
Assignability. (a) 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 Shares or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each Citibank may not assign any portion of its Bank Commitment to the Borrower’s and the Administrative Agent’s consent to any extent that it reduces such assignment commitment below (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 10% of the Commitment minus (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; andCapital of Shares purchased by CNAI,
(ii) the Borrower’s consent to any each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement.
(iii) the amount being assigned 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) each such assignment is required as a result shall in no event be less than the lesser of any Change in Law. The $10,000,000 and all of the assigning Bank's Bank Commitment,
(iv) 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 and Acceptance, together with a copy processing and recordation fee of $2,500, and
(v) concurrently with such assignment, a Bank shall, if such Bank is a Bank other than Citibank, assign to such Eligible Assignee an equal percentage of its rights and obligations under the APA. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (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 such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder 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; , such Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Bank assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided that in such Assignment and Acceptance, such assigning Bank 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 other instrument or document furnished pursuant hereto;
(Aii) such participant is not a Disqualified Lender, (B) such Lender’s assigning Bank makes no representations or warranty and assumes no responsibility with respect to the financial condition of the Seller or the performance or observance by the Seller of any of its obligations under this Agreement shall remain unchanged, or any other instrument or document furnished pursuant hereto;
(Ciii) such Lender shall remain solely responsible assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to the in Article V and such other parties hereto for the performance of documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such obligations, Assignment and Acceptance;
(Div) such Borrowerassignee will, independently and without reliance upon the Agents Agent, such assigning Bank or any other Bank and based on such documents and information as it shall deem appropriate at the other Lenders shall time, continue to deal solely make its own credit decisions in taking or not taking action under this Agreement;
(v) such assignee appoints and directly with authorizes the Agent to take such Lender in connection with action as agent on its behalf and to exercise such Lender’s rights and obligations powers under this Agreement and as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and
(Evi) each Participant shall have agreed 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 bound performed by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which it as 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 participationBank.
(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, 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 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 Capital of Shares 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 Agent and the Lenders shall Banks may treat each Person person whose name is recorded in the Register as a Lender Bank hereunder 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 .
(d) Upon its receipt of an Assignment and a NoteAcceptance executed by an assigning Bank and an Eligible Assignee, the Agent shall, if anysuch Assignment and Acceptance has been completed and is in substantially the form of Exhibit D hereto, evidencing (i) accept such Assignment and Acceptance, (ii) record the same) may be assigned or sold information contained therein in whole or in part only by registration of such assignment or sale on the Register and (and each Note, if any, shall expressly so provideiii) and compliance with this Section 13.06. The Administrative Agent shall update and furnish give prompt notice thereof 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 AmountsSeller.
(e) Notwithstanding anything Each Bank may sell participations to the contrary set forth herein one or more banks or other entities, 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 or 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 a portion of its rights (including rights to payment of principal and interest) obligations under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank(including, without notice to limitation, all or consent a portion of its Bank commitment and the Borrower Shares or the Administrative Agentinterests therein owned by it); provided that no (i) such pledge 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 hereto for the performance of such obligations, (iii) the Seller, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (iv) concurrently with such participation, the Selling Bank shall, if such Bank is any Bank other than Citibank, sell to such bank or grant of other entity a security interest shall release such Lender from any participation in an equal percentage of its rights and obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretounder the APA.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Ies Utilities Inc)
Assignability. (a) Each No Borrower 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 maymay make, with 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. Except as provided in the immediately preceding sentence, no Lender may assign its Loans without the consent of the Administrative Agent and Borrowers. In connection with a permitted assignment, the Borrowerassignor and assignee shall execute an Assignment and Acceptance Agreement in the form of Exhibit D.
(c) Each Lender may sell participations (without the consent of Agent, assign Borrowers or any other Lender) to an assignee 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 Maximum Loan Amount 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 's obligations under this Agreement (including, without limitation, its Maximum Loan Amount hereunder) 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 's rights and obligations under this Agreement 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 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, Agreement 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 amendment 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 waiver would (A) extend the final maturity date or the date for the payment of any installment of fees or principal or interest of any Loans in which such Person shall have represented and agreed in writing that it participant is a Qualified Purchaser and a QIB at the time of such assignment or participationparticipating, (B) reduce the amount of any installment of principal of the Loans in which such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e)participant is participating, (C) a copy of any such representations or agreements shall have been furnished reduce the interest rate applicable to the Borrower and Loans in which such participant is participating, or (D) reduce any such representations or agreements shall run to the benefit of and be enforceable by the Borrowerfees payable hereunder.
(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 Borrower shall not have the right to assign or delegate this Credit Agreement or any interest therein except with the prior written consent of the Agent and each Lender.
(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 the Borrower.
(c) A Lender may, with the consent of the Administrative Agent and and, prior to the Borroweroccurrence of an Event of Default, with the consent of the Borrower (which may not be unreasonably withheld), 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) for each of -------- such assignment, 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 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 the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision a processing and recordation fee of this Section 13.06$3,500, (ii) no such 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.
for less than $10,000,000 of a Lender's Commitment or, if less, the entire amount of such Lender's Commitment and (biii) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents Agent and the Lenders.
Borrower shall not be required in connection with an assignment to an Affiliate. Upon execution and delivery of the Assignment and Assumption Agreement to the Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement, (ix) Any 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 Assumption Agreement, such assignee shall have the rights and obligations of a Lender mayhereunder and (y) the assignor thereunder shall, without to the consent ofextent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption Agreement, but with notice torelinquish its rights (other than any rights it may have pursuant to Section 11.8 hereof which will survive) and be released from its obligations under this Credit Agreement (and, in the Borrower, sell participations to Participants in case of an Assignment and 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 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 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 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 F hereto, (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 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, 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 Commitment, 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 Commitment 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 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 this 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) 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 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 Borrower and its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Wickes Inc)
Assignability. (a) The Borrower shall not have the right to assign this Agreement or any interest therein except with the prior written consent of the Agent.
(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 maymay assign to one or more banks, other financial institutions or investment funds all or a portion of its rights and obligations under this Agreement, the Notes and the other Credit Documents; provided that, except in the case of an assignment to a Federal Reserve Bank (which may be made without condition or restriction), (i) such assignment shall be for a fixed and not varying percentage of the assigning Lender’s Loans, L/C Participations and Commitment, (ii) the Agent shall consent (such consent not to be unreasonably withheld) to, and the Borrower shall receive notice of, such assignment, (iii) for each such assignment, the parties thereto shall execute and deliver to the Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Assumption Agreement, together with any Note or Notes subject to such assignment and (other than in respect of any assignment to any Affiliate of the assigning Lender as permitted under clause (b) above) a processing and recordation fee of $5,000 and (iv) except for any assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, the Notes and the other Credit Documents, no such assignment shall be for less than $5,000,000 of the assigning Lender’s Commitment, unless such assignment is to a then-current Lender or such assignment is of the entire remaining Commitment or Letter of Credit Obligations and outstanding loans of such Lender. Transfers of Loans from an existing Lender to another existing Lender or an Affiliate of an existing Lender (other than a Defaulting Lender) shall not require the Agent’s consent and the recordation fee referred to in clause (iii) above shall not apply to any such transfer. Any sale of all or any portion of a Lender’s Loans hereunder must include pro rata portions of Revolving Exposure, Term Loans, Pre-Petition Term Loan Obligations and Pre-Petition Revolving Credit Obligations, in each case, held by such Lender. Upon such execution and delivery of the Assignment and Assumption Agreement to the Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement (the “Acceptance Date”), (A) 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 Assumption Agreement, such assignee shall have the rights and obligations of a Lender hereunder and (B) 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 (other than any rights it may have pursuant to Section 11.7, which rights will survive) and be released from its obligations (other than any obligations it may have pursuant to Section 11.6, which obligations will survive under this Agreement (and, in the case of an Assignment and Assumption Agreement 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 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 any other Credit Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Notes, or any other Credit Document; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower, any other Credit Parties or any Issuing Bank, the value of the Collateral, or the performance or observance by (A) the Borrower or any other Credit Parties of any of its obligations under this Agreement or any other Credit Document, or (B) any Issuing Bank of any of its obligations under any Letter of Credit; (iii) such assignee confirms that it has received a copy of this 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 Assumption Agreement; (iv) such assignee will continue, 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, to make its own credit decisions in taking or not taking action under this 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 Agreement and the other Credit Documents as are delegated to the Agent by their terms, 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) The Agent shall maintain at its address referred to in Section 11.4 a copy of each Assignment and Assumption Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the 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 the Funds Administrator, the 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 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 Agreement executed by an assigning Lender, together with the Note or 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 A hereto, (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 execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note or Notes to the order of the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the Indebtedness outstanding under the old Note 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 Administrative Agent and Agent, the Borrower, assign Borrower or any other Lender) to an assignee one or more parties in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances Commitment, 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 its Commitment 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 Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) 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 Agreement and such Notes 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 this Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any provision 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 the amount of any drawing under any Letter of Credit in which such participant is participating; (C) except as otherwise expressly provided in this Agreement, reduce the interest rate applicable to the Loans or the amount of any drawing under any Letter of Credit in which such participant is participating; or (D) except as otherwise expressly provided in this Agreement, reduce any Fees payable hereunder in which such participant participates. Each Lender selling or granting a participation, including a participation sold pursuant to Section 2.10, shall indemnify the Borrower and the Agent for any Taxes and Liabilities that either may sustain as a result of such Lender’s failure to withhold and pay any Taxes applicable to payments by such Lender to its participant in respect of such participation. Notwithstanding anything to the contrary herein, the Borrower also agrees that each participant shall be entitled to the benefits of Section 2.8 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; 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 participant 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 have complied with the requirements of said Section and limitations set forth in Section 13.03provided further, 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 receive any greater amount under pursuant to said Section 2.10, 2.11, or 13.03 which is greater than the amount the related transferor Lender would have been entitled to under any receive in respect of the amount of the participation transferred by such Sections or provisions if the applicable participation transferor Lender to such participant had not no such transfer 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.
(iih) In Each Lender agrees that, without the event that prior written consent of the Borrower and the 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 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 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 such Lender may disclose any information in its possession regarding 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 confidentiality 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 Amounts11.6.
(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: Post Petition Credit Agreement (Dan River Inc /Ga/)
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 Purchaser may not assign its rights under this Agreement to anyone other than a Permitted Assignee (as hereinafter defined) without first obtaining Seller’s written approval which may be given or obligations hereunder or any interest herein withheld in Seller’s sole discretion. Subject to the conditions set forth in this Section 9.3, Purchaser may assign its rights under this Agreement to a Permitted Assignee 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 13.17Seller. 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 Purchaser desires to assign its rights and under this Agreement to a Permitted Assignee, Purchaser shall send written notice to Seller at least five (5) business days prior to the effective date of such assignment stating the name and, if applicable, the constituent persons or entities of the Permitted Assignee. Such assignment shall not become effective until such Permitted Assignee executes an instrument whereby the Permitted Assignee expressly assumes each of the obligations hereunderof Purchaser under this Agreement, such including specifically, without limitation, all obligations concerning the ▇▇▇▇▇▇▇ as nonfiduciary agent for Money. No assignment shall release or otherwise relieve Purchaser from any obligations hereunder. For purposes of this Section 9.3, the Borrower term “Permitted Assignee” shall maintain a register on which it enters mean an entity controlling, controlled by or under common control with Purchaser. Notwithstanding anything to the name and address of all participants contrary contained herein, Purchaser shall not have the right to assign this Agreement to any assignee which, in the Advances held reasonable judgment of Purchaser, will cause the transaction contemplated hereby or any party thereto to violate the requirements of ERISA and upon request by it and Seller, Purchaser shall cause to be delivered to Seller such information as is reasonably requested by Seller to confirm that such assignment by Purchaser does not violate the principal amount requirements of (and stated interest on) ERISA. Any violation by Purchaser of the portion of restrictions in this Section 9.3 shall be a default under this Agreement and entitle Seller to terminate this Agreement and receive the Advance which is the subject of the participation ▇▇▇▇▇▇▇ Money as liquidated damages (the “Participant Register”not as a penalty); provided that no Lender , and neither party shall have any obligation to disclose all further rights, obligations 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 liabilities hereunder except to the extent that such disclosure is necessary to establish that such commitmentany right, loan obligation 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 liability set forth herein expressly survives termination 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: Purchase Agreement (Behringer Harvard Opportunity REIT II, 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 -157- 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 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)); 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.. -158-
(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 (Morgan Stanley Direct Lending Fund)
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 of the Program Agent 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, each Conduit Lender may, pursuant to the Asset Purchase Agreement or otherwise, sell, assign, transfer and convey all or any portion of the Advances maintained by such Conduit Lender, 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.
(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 and the applicable tax forms required by Section 13.03(g)Acceptance. Notwithstanding any other provision of this Section 13.06the foregoing, no assignment by any each Secondary Lender to the Borrower or may assign any of its Affiliates 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 any Disqualified Institution consent of the Borrower.
(except c) The Program Agent may, with the consent of the Borrower (which consent shall not be unreasonably withheld or 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.
(bd) Except for an assignment by operation of law to the extent expressly permitted by Section 5.02(d), 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 Secondary Lenders.
(ie) Any Lender mayThe Borrower acknowledges and agrees that each Lender's (other than the Conduit Lenders) and each Secondary Lender's source of funds may derive in part from its participants. Accordingly, without the consent ofreferences in Sections 2.06, but with notice to2.07, the Borrower2.08, sell participations to Participants in all or a portion of such Lender’s rights 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 the other Program Documents (Eother than the Loan Documents) each Participant shall have agreed to be bound by this Section 13.06(c)rates, Section 13.06(d)determinations, Section 13.06(ereserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders (other than the Conduit Lenders) and Section 13.17. Any agreement pursuant the Secondary Lenders shall be deemed also to which a Lender sells such a participation shall provide include those of each of its participants; provided, 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 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 or Secondary 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.
(df) 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 Conduit Lenders and Secondary 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 such Secondary Lenders, their Secondary Lender Commitments, effective dates and Secondary Lender Stated Expiration Dates, and the aggregate outstanding principal amount of the outstanding Advances maintained made by each such Secondary 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 and the Secondary Lenders shall may treat each Person whose name is recorded in the Register as a Secondary Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Secondary 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. This Agreement may not be assigned (otherwise than by operation of law): (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 Buyer without the prior written consent of the Agents Sellers, PROVIDED HOWEVER, that the Buyer may assign any of its rights under this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Lenders.
Closing (without the prior written consent of the Seller): (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in any successor to all or a portion substantially all of such Lender’s rights its business and obligations under assets relating to the subject matter of 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 extent that such entity agrees to assume all of the Buyer's obligations hereunder; or (ii) to one or more Affiliates of the Buyer, to the extent that any such entity agrees to assume all of the Buyer's obligations hereunder and Buyer agrees to guarantee the performance of such obligationsAffiliate or Affiliates; or (b) by the Seller without the prior written consent of Buyer. Furthermore, any or all rights of the Buyer to receive performance (Dbut not the obligations of the Buyer hereunder) and rights to assert claims against the Sellers or the Principal Stockholders in respect of breaches of representations, warranties or covenants of the Sellers or the Principal Stockholders hereunder, may be assigned by the Buyer to any Affiliate of the Buyer, but any assignee of such Borrowerrights shall take such rights subject to any defenses, counterclaims and rights of setoff to which the Agents and Sellers or the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations Principal Stockholders might be entitled under this Agreement and (Eii) each Participant shall have agreed any or all rights of the Sellers to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(ereceive performance (but not the obligations of the Sellers hereunder) and Section 13.17. Any agreement pursuant rights to assert claims against the Buyer in respect of breaches of representations, warranties or covenants of the Buyer hereunder, may be assigned by the Sellers to any beneficial owner of any of the Sellers, but any assignee of such rights shall take such rights subject to any defenses, counterclaims and rights of setoff 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 Buyer might 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 This 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 inure to the benefit of and be enforceable by binding upon the Borrower.
(f) Notwithstanding parties hereto and their respective successors and permitted assigns. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy or claim under or with respect to this Agreement or any 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 heretoAgreement.
Appears in 1 contract
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.103USActive 51774144.2053776213.6-1(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.132-
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
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 mayExcept as set forth in any Ancillary Agreement, with this Agreement and each Ancillary Agreement shall be binding upon and inure to the consent benefit of the Administrative Agent parties hereto and the Borrowerthereto, respectively, and their respective successors and assigns; provided, however, that no party hereto or thereto may assign to an assignee all its respective rights or a portion of delegate its rights and respective 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 any Ancillary Agreement without the express prior written consent of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld other parties hereto 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 permittedthereto.
(b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent Lucent agrees and acknowledges on behalf of itself and each other member of the Agents and the Lenders.
Lucent Group that (i) Any Lender mayAT&T and NCR may enter into a separation and distribution agreement and other agreements and instruments in connection with the NCR Distribution or otherwise providing for certain arrangements between AT&T and NCR and that no consent of any member of the Lucent Group will be required in connection therewith, without (ii) certain transfers of Assets and Liabilities may occur after the date hereof between 75 members of the AT&T Services Group and the NCR Group and that no consent ofof any member of the Lucent Group will be required in connection therewith, but (iii) AT&T shall have no obligation to proceed with notice tothe NCR Distribution, and (iv) except as set forth below, all of the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided of the NCR Group shall continue regardless of whether NCR is an Affiliate of AT&T. Lucent agrees that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under if any technical or other nonmaterial amendments to 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 or any Ancillary Agreement are advisable in connection with such Lender’s rights the NCR Distribution or the separation of the NCR Business from the AT&T Services Business, Lucent will reasonably cooperate with AT&T and obligations under this Agreement and (E) each Participant shall have agreed NCR in connection therewith for no additional consideration. Without limiting the foregoing, effective immediately on notice to be bound Lucent, without any further action required by this Section 13.06(c)any member of the Lucent Group, 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 AT&T may assume any amendment, modification Asset or waiver Liability of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent member 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, NCR Group hereunder 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 Ancillary Agreement (and any stated interest thereon). The entries rights of any member of the NCR Group 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 provideconnection therewith) 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 all members of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsNCR Group shall thereupon automatically be released therefrom.
(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: Separation and Distribution Agreement (Lucent Technologies Inc)
Assignability. (aA) Borrower shall not have the right to assign this Credit Agreement or any interest therein except with the prior written consent of Agent.
(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 the Borrower, may assign to an assignee one or more banks, other financial institutions or investment funds all or a portion of its rights and obligations under this Agreement Credit Agreement, the Notes and the other Credit Documents; PROVIDED that, except in the case of an assignment to a Federal Reserve Bank (including all which may be made without condition or restriction), (I) such assignment shall be for 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 fixed and not varying percentage of the Borrower’s assigning Lender's Loans, participation interests in Letters of Credit, Revolving Loan Commitment and the Administrative Agent’s Term Loan Commitment, (II) Agent shall consent to any such assignment, (III) unless such assignment is to a Person disclosed to Borrower by Agent prior to the Closing Date or is consummated after the occurrence and during the continuance of Event of Default, Borrower shall consent to such assignment (A) which consent by Borrower shall not be unreasonably withheld or delayed; ), (provided that a Lender may not make any such assignment pursuant to this clause (i)(AIV) 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 Assumption Agreement, together with any Note or Notes subject to such assignment and the applicable tax forms required by Section 13.03(g). Notwithstanding a processing and recordation fee of $3,500 and (V) except for 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 , the Notes and the other Credit Documents, no such assignment shall be for less than $10,000,000 of the assigning Lender's Aggregate Commitment, unless such assignment is to a then-current holder of a Note. Upon such execution and delivery of the Assignment and Assumption Agreement to Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement (the "ACCEPTANCE DATE"), (A) 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 participant is not Assignment and Assumption Agreement, such assignee shall have the rights and obligations of a Disqualified Lender, Lender hereunder and (B) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Lender’s Assignment and Assumption Agreement, relinquish its rights (other than any rights it may have pursuant to SECTION 11.8, which rights will survive) and be released from its obligations (other than any obligations it may have pursuant to SECTION 11.7, which obligations will survive under this Credit Agreement shall remain unchanged(and, (C) such Lender shall remain solely responsible to in the other parties hereto for case of an Assignment and Assumption Agreement covering all or the performance remaining portion 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 an assigning Lender’s '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 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 Credit Agreement or any other Credit Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes, or any other Credit Document; (II) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower, any other Credit Parties or any Issuing Lender, the value of the Collateral, or the performance or observance by (A) Borrower or any other Credit Parties of any of its obligations under this Credit Agreement or any other Credit Document, or (B) any Issuing Lender of any of its obligations in respect of any Letter of Credit; (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 Assumption Agreement; (IV) such assignee will continue, 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, to make its own credit decisions in taking or not taking action under this Credit Agreement; (V) such assignee appoints and authorizes 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 Agent by their terms, 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) 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 referred to in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, SECTION 11.5 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 Aggregate Commitment 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 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. 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 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 Upon its receipt of an Assignment and AcceptanceAssumption Agreement executed by an assigning Lender, together with the Note or Notes subject to such assignment, Agent shall, if such Assignment and Assumption Agreement has been completed and is in substantially the form of EXHIBIT A hereto, (I) accept such Assignment and Assumption Agreement, (II) record the information contained therein in the Register and (iiIII) on each date on which 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 Note or Notes a new Note or Notes to the order of the assignee in an amount equal to the Aggregate Commitment assumed by it makes an Advance pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained a Revolving Loan Commitment or Term Loan Commitment hereunder, that a new Note or Notes to the order of the assigning Lender in an amount equal to the Commitment retained by it is a Qualified Purchaser hereunder. Such new Note or Notes shall re-evidence the Indebtedness outstanding under the old Note or Notes 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 be in an aggregate principal amount equal 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 aggregate principal amount of such assignment surrendered Note or participationNotes, (B) shall be dated the Closing Date and shall otherwise be in substantially the form of the Note or Notes subject to 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 Borrowerassignments.
(fG) Notwithstanding Each Lender may sell participations (without the consent of Agent, 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 all or a portion of its Aggregate Commitment, 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 its Aggregate Commitment to 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 Note for all purposes of this Credit Agreement, (IV) Borrower, 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 such Notes 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 of the Loans or the amount of any Drawing under any Letter of Credit in which such participant is participating; (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to the Loans or the amount of any Drawing under any Letter of Credit in which such participant is participating; or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder. Each Lender selling or granting a participation, including a participation sold pursuant to SECTION 2.9, shall indemnify Borrower and interest) under this Agreement to secure obligations Agent for any Taxes and Liabilities that either may sustain as a result of such Lender, including 's failure to withhold and pay any pledge or security interest granted Taxes applicable to a Federal Reserve Bankpayments by such Lender to its participant in respect of such participation.
(H) Each Lender agrees that, without notice to or the prior written consent of Borrower 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, Note or other Obligation 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 or substitute any such pledgee or grantee for such Lender as a party heretopossession regarding Borrower.
Appears in 1 contract
Sources: Credit Agreement (Weider Nutrition International Inc)
Assignability. (a) Borrower shall not have the right to assign this Credit Agreement or any interest therein except with the prior written consent of Agent.
(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 the Borrower, may assign to an assignee one or more banks, other financial institutions or investment funds all or a portion of its rights and obligations under this Agreement Credit Agreement, the Notes and the other Credit Documents; PROVIDED that, except in the case of an assignment to a Federal Reserve Bank (including all which may be made without condition or a portion of its outstanding Advances or interests therein owned by itrestriction), together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each such assignment shall be for a fixed and not varying percentage of the Borrower’s assigning Lender's Loans, participation interests in Letters of Credit 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
Aggregate Commitment, (ii) the Borrower’s Agent shall consent to any to, and Borrower shall receive notice of, such assignment pursuant to this Section 13.06(aassignment, (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 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 Assumption Agreement, together with any Note or Notes subject to such assignment and the applicable tax forms required by Section 13.03(g). Notwithstanding a processing and recordation fee of $3,500 and (iv) except for 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 , the Notes and the other Credit Documents, no such assignment shall be for less than $10,000,000 of the assigning Lender's Aggregate Commitment, unless such assignment is to a then-current holder of a Note. Upon such execution and delivery of the Assignment and Assumption Agreement to Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement (the "ACCEPTANCE DATE"), (A) 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 participant is not Assignment and Assumption Agreement, such assignee shall have the rights and obligations of a Disqualified Lender, Lender hereunder and (B) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Lender’s Assignment and Assumption Agreement, relinquish its rights (other than any rights it may have pursuant to Section 11.8, which rights will survive) and be released from its obligations (other than any obligations it may have pursuant to Section 11.7, which obligations will survive) under this Credit Agreement shall remain unchanged(and, (C) such Lender shall remain solely responsible to in the other parties hereto for case of an Assignment and Assumption Agreement covering all or the performance remaining portion 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 an assigning Lender’s 's rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c)Credit Agreement, 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 cease 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”party hereto); 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 Credit Agreement or any other Credit Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes, or any other Credit Document; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower, any other Credit Parties or any Issuing Lender, the value of the Collateral, or the performance or observance by (A) Borrower or any other Credit Parties of any of its obligations under this Credit Agreement or any other Credit Document, or (B) any Issuing Lender of any of its obligations in respect of any Letter of Credit; (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 Assumption Agreement; (iv) such assignee will continue, 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, to make its own credit decisions in taking or not taking action under this Credit Agreement; (v) such assignee appoints and authorizes 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 Agent by their terms, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees (for the benefit of Borrower, Agent and acting solely for this purpose as the nonfiduciary agent each of the Borrower, Lenders) 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) 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 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 Aggregate Commitment 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 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. 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 Note or Notes subject to such assignment, Agent shall, if such Assignment and Assumption Agreement has been completed and is in substantially the form of EXHIBIT A hereto, (i) accept such Assignment and Assumption Agreement, (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 Note or Notes a new Note or Notes to the order of the assignee in an amount equal to the Aggregate Commitment assumed by it pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained an Aggregate Commitment hereunder, a new Note or Notes to the order of the assigning Lender in an amount equal to the Aggregate Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the Indebtedness outstanding under the old Note 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 Agent, 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 all or a portion of its Aggregate Commitment, 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 its Aggregate Commitment to 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 Note for all purposes of this Credit Agreement, (iv) Borrower, 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 such Notes 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 of the Loans or the amount of any Drawing under any Letter of Credit in which such participant is participating; (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to the Loans or the amount of any Drawing under any Letter of Credit in which such participant is participating; or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder. Each Lender selling or granting a participation, including a participation sold pursuant to Section 2.10, shall indemnify Borrower and interest) under this Agreement to secure obligations Agent for any Taxes and Liabilities that either may sustain as a result of such Lender, including 's failure to withhold and pay any pledge or security interest granted Taxes applicable to a Federal Reserve Bankpayments by such Lender to its participant in respect of such participation.
(h) Each Lender agrees that, without notice to or the prior written consent of Borrower 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, Note or other Obligation under the Borrower securities laws of the United States of America or of any other 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 or substitute any such pledgee or grantee for such Lender as a party heretopossession regarding Borrower, subject to Section 11.7.
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 not to be unreasonably withheld, delayed or conditioned) 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 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 (1) a Permitted Assignee with respect to such assignor; andLender or any of its Affiliates or (2) 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) a Default or 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 with Section 13.01) contrary, each Lender may make an assignment to any Person without the consent of the Borrower or (y) the Administrative Agent if such assignment is required as Lender makes a result determination that its ownership of any Change in Lawof its rights or obligations hereunder is prohibited by Applicable Law (including, without limitation, the ▇▇▇▇▇▇▇ Rule). 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), together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of Citibank, N.A.). Notwithstanding any other provision of this Section 13.0612.06, (x) no assignment by any Lender may be made to the Borrower or any of its Affiliates or any Disqualified Institution Affiliates, and (except if an Event of Default has occurred and is continuingy) no assignment shall be permittedmade to any Defaulting Lender or a natural person.
(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.
(id) 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 noteach Participant shall be entitled to the benefits of Sections 2.09, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11and 12.03 (subject to the requirements and limitations therein, and 13.03 including the requirements under Section 12.03(f) (it being understood that the documentation required under Section 12.03(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 under 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 such Participant (A) such Participant agrees to be subject to the provisions of Section 13.03(g) 2.16 as if it were an assignee under clause paragraph (ab) of this Section 13.06 Section; and (B) no Participant shall not be entitled to receive any amount greater payment under Section 2.102.09 or Section 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.
(iii) 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”) and the right to principal of, and stated interest on, such participation may be transferred only through being reflected in such Participant Register. 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); provided that no . 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 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) and the right to principal of, and stated interest on, the Advances of a Lender (other than as provided for participations in Advances in Section 12.06(c)(ii)) may be transferred only through being reflected in such Register. 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, the Custodian, the Securities Intermediary 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 Borrower, 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 13.0612.06. The Administrative Agent provisions of this section 12.06(d) are intended to satisfy the requirements of Treasury regulation section 5f.103-1(c) and shall update be interpreted 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 Amountsapplied consistent with this intent.
(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 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 (Cim Real Estate Finance Trust, Inc.)
Assignability. (a1) Each Lender may, with Neither the consent of Borrower nor 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 assign 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 under the Note without the prior written consent of the Agents and the Lendersother, which consent shall not be unreasonably withheld.
(i2) Any The Lender may, without the consent ofin accordance with applicable law, but with notice toat any time sell to one or more lenders or other entities (“Participants”) participating interests in any Loan, the BorrowerNote, sell participations its commitment to Participants in all make Loans, or any other interest of the Lender hereunder and under the other Operative Documents. In the event of any such sale by the Lender of participating interests to a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified LenderParticipant, (B) such the Lender’s obligations under this Agreement to the Borrower shall remain unchanged, (C) such the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrowerthereof, the Agents Lender shall remain the holder of the Note for all purposes under this Agreement and the other Lenders Operative Documents, and the Borrower shall continue to deal solely and directly with such the Lender in connection with such the Lender’s rights and obligations under this Agreement and (E) the other Operative Documents. The Borrower agrees that if amounts outstanding under this Agreement and the Note are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement and the Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or the Note; provided, that such Participant shall only be entitled to such right of set-off if it 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 in the agreement pursuant to which a Lender sells such a participation it 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 have acquired its participating interest by assignment pursuant to clause (a) of this Section 13.06 (subject to share with the requirements and limitations set forth in Section 13.03, including Lender 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 participationproceeds thereof.
(ii3) In the event that any The 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 may furnish 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 concerning the Borrower or any of its Subsidiaries in the possession of such Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance to assignees and participants (including prospective assignees and a Note, if any, evidencing the sameparticipants) may be assigned or sold in whole or in part only by registration of provided that 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 persons agree to confidentiality requirements substantially similar to those applicable 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 AmountsLender.
(e4) Notwithstanding anything The Borrower agrees, at the Lender’s cost, to cooperate with the Lender in connection with any such assignment and/or participation, to execute and deliver such replacement notes, and to enter into such restatements of, and amendments, supplements and other modifications to, this Agreement and the other Operative Documents in order to give effect to such assignment and/or participation. The Borrower further agrees to furnish to any Participant identified by the Lender to the contrary set forth herein or in any other Facility Document, each Borrower copies of all reports and certificates to be delivered by the Borrower to the Lender hereunder, as 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 when delivered 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 BorrowerLender.
(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: Servicer Advance Financing Facility Agreement (New Century Financial 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 (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 ▇▇▇▇▇▇ 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 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 (Morgan Stanley Direct Lending Fund)
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 1 contract
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 payment 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 1 contract
Sources: Asset Purchase Agreement (Equity Media Holdings CORP)
Assignability. (ann) 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). 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(ej), (C) together with a copy processing and recordation fee of any $2,500, such representations fee to be paid by either the assigning Lender or agreements shall have been furnished to the Borrower and (D) any assignee Lender or shared between such representations or agreements shall run to the benefit of and be enforceable by the Borrower.
(f) Lenders. 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) This Agreement and the 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 rights and obligations under this Agreement to any Person other than to a U.S. Affiliate of the Agent which is a special purpose entity that issues promissory notes. Each such assignor shall notify the 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 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 Lender may, pursuant to an Asset Purchase Agreement or otherwise, sell, assign, transfer and convey all or any portion of the Advances maintained by the Conduit Lender, 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.
(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 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 Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g)Acceptance. Notwithstanding any other provision of this Section 13.06the foregoing, no assignment by any each Secondary Lender to the Borrower or may assign any of its Affiliates 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) The Agent may, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed and which consent shall, in any Disqualified Institution (except event, 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 Agent.
(bd) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the LendersAgent.
(ie) Any Lender mayThe Borrower acknowledges and agrees that each Lender's (other than the Conduit Lender) and each Secondary Lender's source of funds may derive in part from its participants. Accordingly, without the consent ofreferences in SECTIONS 2.06, but with notice to2.07, the Borrower2.08, sell participations to Participants in all or a portion of such Lender’s rights 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 capital adequacy requirements, accounting principles, expenses, increased costs, reduced receipts and the like as they pertain 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 the Secondary Lenders shall be deemed also to include those of each of 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))participants; provided 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 or Secondary 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.
(df) 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 in Section 13.02 SECTION 9.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, Lenders and Secondary 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”"REGISTER") for the recordation of the names and addresses of the Lenders Secondary Lenders, their Secondary Lender Commitments, effective dates and Secondary Lender Stated Expiration Date, and the aggregate outstanding principal amount of the outstanding Advances maintained made by each Secondary 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 Agent and the Secondary Lenders shall may treat each Person whose name is recorded in the Register as a Secondary Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Secondary 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 (Ing Prime Rate Trust)
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 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 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; andAsset Purchase Agreement,
(ii) the Borrower’s consent to any such assignment amount being assigned 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 each assignment is required at least $5,000,000 or any integral multiple of $1,000,000 in excess thereof (or such lesser amount as a result shall equal all of any Change in Law. The such APA Purchaser's Percentage Interests or such APA Purchaser's Maximum Purchase at such time), and
(iii) 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, such fee to be paid by or on behalf of the assignee. 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 Moody's and S&P and (ii) the assignee has delivered to Moody's ▇▇▇ ▇&▇ an opinion of counsel to the Borrower or any assignee satisfact▇▇▇ ▇▇ each of its Affiliates or any Disqualified Institution (except if an Event Moody's and S&P stating that the obligations of Default has occurred the assignee under ▇▇▇▇ ▇sset 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 the Seller, which approval shall remain unchangednot be unreasonably withheld, denied or delayed, and (C) such Lender shall remain solely responsible either (x) has short-term debt rated at least "P-1" by Moody's and "A-1+" by S&P or (y) is acceptable to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents Moody's 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.S&P.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lexmark International Group Inc)
Assignability. (a) Each Lender may, with the consent A Person shall become a party hereto and shall ------------- become a Liquidity Provider hereunder upon satisfaction of the Administrative Agent conditions set forth in this Section 9 and the Borrower, occurrence of the effective date of such Liquidity Provider's Liquidity Commitment (as set forth in such Assignment).
(b) Each Liquidity Provider may assign to an assignee any Permitted Assignee all or a portion of its rights and obligations under this Agreement (including all or a portion Agreement; provided, -------- however, that in the case of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided thatany assignment other than an assignment pursuant to ------- Section 2(c) hereof:
(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 to any such assignment amount being assigned pursuant to this Section 13.06(aeach assignment shall in no event be less than $5,000,000,
(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 Liquidity Agent and the Securitization Company Agent, an Assignment in the form of Exhibit A attached hereto, and
(with a copy iv) the assignee shall deliver to the Collateral AgentLiquidity Agent and the Securitization Company Agent at least five days prior to the effective date specified in the Assignment (A) an Assignment and Acceptance opinion of counsel for such assignee, addressed to the Liquidity Agent and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06Securitization Company Agent, no assignment by any Lender CRC and each Rating Agency, in form and substance reasonably satisfactory to the Borrower or any Liquidity Agent and the Securitization Company Agent and such addressees (and the Liquidity Agent and the Securitization Company Agent shall promptly deliver copies of its Affiliates or any Disqualified Institution the same to each of such addressees), (except if an Event of Default has occurred B) the information and is continuingfinancial statements regarding such assignee requested by the Liquidity Agent and the Securitization Company Agent and (C) the documents specified in Section 5(f) hereof. Upon such execution and delivery, from and after the effective date specified in the Assignment, (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 this Agreement, have the rights and obligations of a Liquidity Provider hereunder and (by) Borrower may not assign the Liquidity Provider which is the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to this Agreement, relinquish its rights or obligations hereunder or any interest herein without (other than 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 right to Participants receive payments which accrued in all or a portion favor of such Lender’s rights Liquidity Provider pursuant to Sections 3 and 4 hereof prior to such assignment) and be released from its obligations under this Agreement; provided that , except for the obligations in Section 12(i) hereof.
(Ac) such participant Upon receipt by the Liquidity Agent and the Securitization Company Agent of an Assignment executed by an assigning Liquidity Provider and by an assignee who is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to Permitted Assignee and the satisfaction of 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 conditions 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 doubt9, 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 Liquidity Agent and the Borrower from time to time at the request of the Collateral Securitization Company 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 shall 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 give prompt notice 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 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 BorrowerCRC.
(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 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 and the Borrower, 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 ten (10) 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 (1) a Permitted Assignee with respect to such assignorLender or any of its Affiliates or (2) managed by a Lender or any of its Affiliates; and
(ii) unless such assignment is to a Person that is a Competitor, 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 Lawbe 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 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, any Competitor, 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, 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 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 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 ▇▇▇▇▇▇ 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 or for the proposed United States Treasury RegulationsBorrower, any Agent, the Collateral Administrator, the Custodian or the Securities Intermediary to satisfy any information reporting requirement with respect to payments made to such Participant. 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 12.02 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 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 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 for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrower, 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 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.
Appears in 1 contract
Sources: Credit and Security Agreement (FS Investment Corp II)
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 Seller shall not be obligated to deal directly with any party other than Buyer or its Affiliate in connection with such Transactions and (ii) Buyer shall not assign or grant participations in its rights and obligations hereunder to any of the Borrowerparties listed on Exhibit X attached hereto or their respective Affiliates (collectively, “Prohibited Transferees”) without Seller’s and the Administrative Agent’s prior written consent, which consent to any such assignment (A) shall not be unreasonably withheld withheld, conditioned 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 13.06the foregoing, no assignment by any Lender to the Borrower if a 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) shall be permitted.
(b) Borrower , Buyer may not assign and/or grant participations in any and all of its rights and obligations to any Prohibited Transferee, without notice to or obligations hereunder or any interest herein without the prior written 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, The Borrowers shall not have the right to assign this Credit Agreement or any interest therein except with the prior written consent of the Administrative Agent and Agent.
(b) Any Lender may make, carry or transfer Loans at, to or for the Borroweraccount 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 assign to an assignee one or more banks, other financial institutions or investment funds all or a portion of its rights and obligations under this Agreement Credit Agreement, the Notes and the other Credit Documents; PROVIDED that, except in the case of an assignment to a Federal Reserve Bank (including all which may be made without condition or a portion of its outstanding Advances or interests therein owned by itrestriction), together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:
(i) each such assignment shall be for a fixed and not varying percentage of the Borrower’s assigning Lender's Loans, L/C Participations 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
Commitment, (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 Agent and, 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 BorrowerFunds Administrator shall consent to such assignment (which consents 104 shall not be unreasonably withheld), sell participations (iii) for each such assignment, the parties thereto shall execute and deliver to Participants the Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Assumption Agreement, together with any Note or Notes subject to such assignment and a processing and recordation fee of $5,000 and (iv) except for any assignment covering all or a the remaining portion of such an assigning Lender’s 's rights and obligations under this Credit Agreement; provided that , the Notes and the other Credit Documents, no such assignment shall be for less than $1,000,000 of the assigning Lender's Commitment, unless such assignment is to a then-current holder of a Note. Upon such execution and delivery of the Assignment and Assumption Agreement to the Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement (the "ACCEPTANCE DATE"), (A) 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 participant is not Assignment and Assumption Agreement, such assignee shall have the rights and obligations of a Disqualified Lender, Lender hereunder and (B) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Lender’s Assignment and Assumption Agreement, relinquish its rights (other than any rights it may have pursuant to SECTION 11.8, which rights will survive) and be released from its obligations (other than any obligations it may have pursuant to SECTION 11.7, which obligations will survive under this Credit Agreement shall remain unchanged(and, (C) such Lender shall remain solely responsible to in the other parties hereto for case of an Assignment and Assumption Agreement covering all or the performance remaining portion 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 an assigning Lender’s 's rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c)Credit Agreement, 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 cease 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”party hereto); 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 Credit Agreement or any other Credit Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes, or any other Credit Document; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower, any other Credit Parties or any Issuing Bank, the value of the Collateral, or the performance or observance by (A) any Borrower or any other Credit Parties of any of its obligations under this Credit Agreement or any other Credit Document, or (B) any Issuing Bank of any of its obligations under any Letter of Credit; (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 Assumption Agreement; (iv) such assignee will continue, 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, 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 and the other Credit Documents as are delegated to the nonfiduciary agent Agent by their terms, 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. 105
(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, SECTION 11.5 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 Commitment 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 BorrowerFunds Administrator, the Agents Borrowers, the 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 Assumption shall be available for inspection by the any 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 Note or 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 A hereto, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Funds Administrator. 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 a new Note or Notes to the order of the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the Indebtedness outstanding under the old Note 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, any 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 all or a portion of its Commitment, 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 its Commitment 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 Funds Administrator, 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 such Notes 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 of the Loans or the amount of any drawing under any Letter of Credit in which such participant is participating; (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to the Loans or the amount of any drawing under any Letter of Credit in which such participant is participating; or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable 106 hereunder in which such participant participates. Each Lender selling or granting a participation, including a participation sold pursuant to SECTION 2.10, shall indemnify the Borrowers and interest) under this Agreement to secure obligations the Agent for any Taxes and Liabilities that either may sustain as a result of such Lender, including 's failure to withhold and pay any pledge or security interest granted Taxes applicable to a Federal Reserve Bankpayments by such Lender to its participant in respect of such participation.
(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 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) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, such Lender from may disclose any information in its possession regarding any Borrower, subject to the confidentiality provisions of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoSECTION 11.7.
Appears in 1 contract
Sources: Credit Agreement (Wellman Inc)
Assignability. (a) Each Lender may, with the written 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 five (5) 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); (iii) or (y) such assignment is required as a result of any Change in Law. The parties to each such no assignment shall execute and deliver be made to the Administrative Agent a natural person; (with a copy to the Collateral Agentiv) 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 shall be made to the (x) a Borrower or any of its Affiliates or Subsidiaries or (y) any Disqualified Institution Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y); (v) except if in the case of an Event assignment to a Lender or an Affiliate of Default has occurred a Lender or a Permitted Assignee or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Advances of any class, the amount of the Commitment or Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and is continuing) shall be permitted.Acceptance with respect to such -122- 34881204v6 110062879
(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.. -123- 34881204v6 110062879
(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 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(e15.06(c) and Section 13.17Sections 14.09(b) and 14.15 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 15.06(f) with respect to any Participant. Sections 2.102.09, 2.11, 2.16 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 2.10Sections 2.09, 2.11, 2.16 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.
(iid) 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 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 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.
(de) 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 15.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement Agreement, the Administrative Questionnaire 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 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 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.-124- 34881204v6 110062879
(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, (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 1 contract
Assignability. (a) Each Lender may, with the consent of the Administrative Agent This Agreement and the Borrower, assign to an assignee all or a portion of its Issuer's rights and obligations under this Agreement herein (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 ownership 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 continuingPurchased Interest) shall be permittedassignable, in whole or in part, by the Issuer and its successors and assigns; provided, however, that prior to the Termination Date the Issuer will not assign the Issuer's rights and obligations herein (including ownership of the Purchased Interest), in whole or in part, to any Person other than a Purchaser. Each assignor may, in connection with the assignment disclose to the applicable assignee any information relating to the Seller or the Purchased Receivables furnished to such assignor by or on behalf of the Seller, the Issuer or the Administrator.
(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 participating interests in this Agreement and the Purchased Interest. In the event of any such grant by the Issuer of a participating interest to a Purchaser, the Issuer shall remain responsible for the performance of its obligations hereunder. The Seller agrees that each Purchaser shall be entitled to the benefits of all representations, warranties, covenants, agreements and indemnities of the Seller made or contained in this Agreement, all of which may be enforced by the Issuer for the benefit of itself and such participants.
(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, HOWEVER that the Administrator shall give the Seller and the Servicer prior notice thereof and the Administrator shall not assign its rights and obligations hereunder to a competitor of 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 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 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 AmendmentIssuer may be enforced through it or by its agents. Sections 2.10, 2.11, The Seller acknowledges 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 agrees that the requirements and limitations set forth in Section 13.03, including Administrator is 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 Issuer for all purposes of this Agreement notwithstanding any notice and that the Administrator shall be entitled to exercise all rights, powers, privileges and remedies of 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 AgentIssuer hereunder for, on behalf of and acting solely for this purpose as in the nonfiduciary agent name of the BorrowerIssuer. Each of the Seller and the Servicer shall be entitled to rely, and shall maintain at be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the Administrator or its address specified in Section 13.02 officers or such employees for and on behalf of the Issuer or by any other address as the Administrative Agent shall designate in writing proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the LendersIssuer), a copy of this Agreement independent accountants 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 other experts selected 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 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 (Stone Container 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 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 Agent and, so long as no Event of Default is then continuing, Borrower, which consent shall not be unreasonably withheld, but without the Administrative Agent and 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, 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 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).
(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 and Term 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 D hereto, (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 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, 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, Term 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 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 (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 ParticipantBorrower 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 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 to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold information 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 possession regarding 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 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(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) no assignment shall be made to a natural person or any Prohibited Assignee; and
(yiv) such no assignment is required as a result 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 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 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 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 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 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 (Capitala Finance Corp.)
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 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)