Appears in 4 contracts

Sources: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending 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 Borrower~~Spinco, 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 it~~Spinco, ~~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 may~~merger, ~~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 ~~Borrower~~board 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 4 contracts

Sources: Transition Services Agreement (General Growth Properties, Inc.), Transition Services Agreement (Howard Hughes Corp), Transition Services Agreement (New GGP, 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 if (x) an Event of Default under Section 6.01(a) (solely with respect to principal or interest), Section 6.01(i), Section 6.01(k) or Section 6.01(l) shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required ~~as a result of~~ by any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates ~~or any Disqualified Institution (except if~~ or, unless an Event of Default under Section 6.01(a) (solely with respect to principal or interest), Section 6.01(i), Section 6.01(k) or Section 6.01(l) has occurred and is ~~continuing)~~ continuing at the time of such assignment, any Disqualified Lender shall be permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such ~~participant is not a Disqualified Lender, (B) such~~ Lender’s obligations under this Agreement shall remain unchanged, (CB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (DC) ~~such~~ the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and~~ Agreement, (ED) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section ~~13.17~~13.17 and (E) unless an Event of Default under Section 6.01(a) (solely with respect to principal or interest), Section 6.01(i), Section 6.01(k) or Section 6.01(l) has occurred and is continuing at the time of such assignment, such Participants are not Disqualified Lender. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) (it being understood that the documentation required under Section 13.03(g) shall be delivered to the participating Lender) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the ~~United States Treasury Regulations and Section 1.163-5(b) of the proposed~~ United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless ~~(A)~~ such Person ~~shall have represented and agreed in writing that it~~ is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. (g) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, any Lender (an “Existing Lender”) that assigns any or all of its Individual Lender Maximum Funding Amount to a Repackaging SPV (the “Repackaging SPV Transferred Interests”), shall: (i) continue to be subject to all the obligations of such Existing Lender which correspond to that portion of the Existing Lender’s Individual Lender Maximum Funding Amount and participations in Advances forming the Repackaging SPV Transferred Interests, such that the Existing Lender and the Repackaging SPV are jointly and severally liable for all the obligations in respect of the Repackaging SPV Transferred Interests and the Borrower shall have the corresponding rights against each of the Existing Lender and the Repackaging SPV, provided that upon any repayment of Advances to the Repackaging SPV the corresponding increase in the Individual Lender Maximum Funding Amount of the Repackaging SPV and the right of the Repackaging SPV to re-lend monies pursuant to this Agreement shall be assumed solely by the Existing Lender and not the Repackaging SPV if the Existing Lender so notifies the Borrower, the Investment Advisor and the Administrative Agent; (ii) fund the Repackaging SPV Transferred Interests in respect of that Advance by 2:00 pm (New York time) on the applicable Borrowing Date if the relevant Repackaging SPV has failed to so fund (or has confirmed that it will not be able to fund or to the extent the Existing Lender and the Repackaging SPV have otherwise agreed that Existing Lender will provide the relevant funding) on the applicable Borrowing Date; and (iii) retain exclusive control over all rights and obligations with respect to the Repackaging SPV Transferred Interests, including all rights with respect to voting, waivers, consents, modifications, amendments and any confirmations as to satisfaction of any requirements hereunder or under any Facility Document.

Appears in 4 contracts

Sources: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)

Assignability. (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~~ 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~~ assigned 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 transferred by any ~~Lender to the Borrower~~ Licensee in whole or ~~any~~ in part, including by operation 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 Law, without the prior written consent of the ~~Agents and the Lenders. (i) Any Lender may~~Licensors, ~~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~~will not be unreasonably withheld; provided that in the event of any permitted assignment or transfer by a Licensee in accordance with the foregoing, the Licensees shall provide a guarantee to the Licensors (Ain a form reasonably agreed upon) ~~such participant is not~~ for any liability or obligation of the assignee or transferee under this Agreement and the assignee or transferee shall agree in a ~~Disqualified Lender, (B) such Lender’s~~ written agreement with Licensors to assume all of the obligations under this Agreement ~~shall remain unchanged, (C) such Lender shall remain solely responsible~~ relating to the ~~other parties hereto for~~ relevant Licensee(s) or Licensed Radio Station(s) that are the ~~performance~~ subject of such ~~obligations~~assignment or transfer; provided, further, that Licensees shall update Schedule 1 to disclose any permitted assignment or transfer pursuant to the requirements in Section 1.1(o). (Db) Notwithstanding the foregoing, this Agreement may be assigned or transferred by any Licensee in whole or in part upon prior written notice to the Licensors to (i) a Radio Entity (other than Entercom or a Subsidiary of Entercom) solely with respect to rights to use the Licensed Property other than Licensed Property that is or includes WCBS or KCBS; provided, that in the event of any such ~~Borrower~~permitted assignment or transfer by a Licensee, the ~~Agents and~~ assignee or transferee shall agree in a written agreement with Licensors to assume all of 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 relating to the relevant Licensee(s) or Licensed Radio Station(s) that are the subject of such assignment or transfer and the assigning party shall be relieved of its obligations hereunder and no longer deemed a “Licensee” for the purposes of this Agreement; or (Eii) ~~each Participant shall have agreed~~ Entercom or a Subsidiary of Entercom so long as Entercom and its Subsidiaries or any of their respective parents or Affiliates are not engaged in the business of television broadcasting in the United States; provided, that any such assignee or transferee agrees 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~~ provided, further, in each case, Licensees shall update Schedule 1 to disclose the removal of, or permitted assignment or transfer to, a Licensed Radio Station or Licensee, which update shall be delivered concurrent with Licensees notice to Licensors of 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~~ or transfer. (ac) Any purported assignment or transfer in violation 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 12.7 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 null and void and 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 Registereffect. (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 of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register~~ foregoing Sections (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 Acceptancea) 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(eb), ~~(C) a copy of any such representations or agreements~~ this Agreement shall ~~have been furnished to the Borrower~~ be binding upon and ~~(D) any such representations or agreements shall run~~ inure to the benefit of and be enforceable by the ~~Borrower. (f) Notwithstanding any other provision~~ Parties and their permitted successors and assigns. For the purposes of this ~~Section 13.06~~Agreement, a “successor” shall include any ~~Lender may at~~ entity that is a legal successor to any ~~time pledge~~ Party as a result of a sale or ~~grant a security interest in~~ acquisition of such Party, whether by merger, consolidation, sale of all or ~~any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations~~ substantially all 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 heretoParty’s assets.

Appears in 4 contracts

Sources: Trademark License Agreement, Trademark License Agreement (CBS Corp), Trademark License Agreement (CBS Corp)

Assignability. (a) ~~Each Lender may, with~~ This Agreement shall be binding upon and inure to the ~~consent~~ benefit of the ~~Administrative Agent~~ Parties and ~~the Borrower~~their respective successors and permitted assigns; provided, ~~assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it~~however, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:~~ that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower Carrier may not assign its rights or delegate its obligations ~~hereunder or any interest herein~~ under this Agreement without the express prior written consent of UTC, (ii) ▇▇▇▇ may not assign its rights or delegate its obligations under this Agreement without the ~~Agents~~ express prior written consent of UTC, (iii) UTC may not assign its rights or delegate its obligations with respect to Carrier under this Agreement without the express prior written consent of Carrier and (iv) UTC may not assign its rights or delegate its obligations with respect to ▇▇▇▇ under this Agreement without the ~~Lenders~~express prior written consent of ▇▇▇▇. (ib) ~~Any Lender may~~Notwithstanding the foregoing and without limiting UTC’s rights pursuant to Section 5.03(c), ~~without~~ no consent shall be required pursuant to Section 8.08(a) for the ~~consent of, but with notice to, the Borrower, sell participations to Participants in all or~~ assignment of a ~~portion of such Lender~~Party’s rights and obligations under ~~this~~ the Separation and Distribution Agreement~~; provided that (A) such participant is not a Disqualified Lender~~, ~~(B) such Lender’s obligations under~~ this Agreement ~~shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents~~ and the other ~~Lenders shall continue to deal solely and directly with~~ Ancillary Agreements in whole (i.e., the assignment of such ~~Lender in connection with such Lender~~Party’s rights and obligations under the Separation and Distribution Agreement, this Agreement and all the other Ancillary Agreements all at the same time) in connection with a merger, consolidation or other business combination of such Party with or into any other Person or a sale of all or substantially all of the assets of such Party to another Person, in each case so long as the resulting, surviving or acquiring Person assumes all the obligations of such applicable Party by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the Party or Parties whose consent would otherwise be required pursuant to Section 8.08(a). The Parties agree that if Carrier or ▇▇▇▇ divests a business or portion of a business to a third party buyer while such business (Eor portion thereof, as applicable) ~~each Participant~~ is receiving Services under this Agreement, and the unavailability of the Services for the remaining applicable Service Period would materially and adversely impact such divested business (or portion thereof, as applicable) or Carrier’s or ▇▇▇▇’, as applicable, ability to successfully complete such divestiture, upon the written request of Carrier or ▇▇▇▇, as applicable, UTC and Carrier or ▇▇▇▇, as applicable, will cooperate in good faith and use commercially reasonable efforts to agree on a mutually acceptable and commercially reasonable plan to permit such divested business (or portion thereof, as applicable), but, for clarity, not any portion of the applicable third party buyer’s businesses or operations other than solely such divested business (or portion thereof, as applicable), to continue to receive the applicable Services during the remaining applicable Service Period consistent with the terms and conditions hereof, such plan to include, if mutually acceptable and commercially reasonable, any appropriate set-up or similar activities to segregate, as appropriate, the services provided to the divested business (or portion thereof, as applicable) from those provided to Carrier or ▇▇▇▇, as appropriate, and if and when such plan to segregate the services for such divested business (or portion thereof, as applicable) is mutually agreed (or if not mutually agreed, so long as UTC and Carrier or ▇▇▇▇, as applicable, shall have ~~agreed to be bound by this Section 13.06(c~~determined that such plan is not necessary after cooperating in good faith), ~~Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation~~ UTC shall provide ~~that~~ such ~~Lender shall retain~~ services to such divested business (or portion thereof, as applicable) on the ~~sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement~~terms set out herein; provided that (a) the third party buyer, pursuant to an agreement with Carrier or ▇▇▇▇, as applicable, assumes all obligations of Carrier or ▇▇▇▇, as applicable, under this Agreement in respect of such divested business (or portion thereof) and such applicable Services which agreement ~~may provide~~ shall be in form and substance reasonably satisfactory to UTC, and shall also specify that ~~such Lender will not, without~~ other than the ~~consent~~ preparation for and provision of the ~~Participant~~applicable Services and any necessary interaction with the third party buyer in connection therewith, ~~agree to any Fundamental Amendment. Sections 2.10~~UTC need only communicate and interact with Carrier or ▇▇▇▇, ~~2.11~~as applicable, and ~~13.03~~ not such third party buyer, including with respect to invoicing, for which UTC shall ~~apply~~ invoice Carrier or ▇▇▇▇, as applicable, and Carrier or ▇▇▇▇, as applicable, shall remit payment to ~~each Participant as if it were a Lender and had acquired its interest by assignment pursuant to~~ UTC, (b) notwithstanding the foregoing clause (a) of and in addition to (but not in duplication of) its other indemnification obligations (if any) under the Separation and Distribution Agreement, this ~~Section 13.06 (subject to the requirements and limitations set forth in Section 13.03~~Agreement or any other Ancillary Agreement, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, Carrier or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ , as ~~nonfiduciary agent for the Borrower~~ applicable, shall ~~maintain a register on which it enters the name~~ indemnify, defend and ~~address~~ hold harmless UTC, its Subsidiaries and each of ~~all participants in the Advances held by it~~ their respective Representatives, and ~~the principal amount of (and stated interest on)~~ each of the ~~portion~~ successors and assigns of any of the ~~Advance which is~~ foregoing, from and against any and all Liabilities relating to, arising out of or resulting from the ~~subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all~~ sale, delivery or ~~any portion of the Participant Register (including the identity~~ provision of any ~~Participant or any information relating~~ such Services to ~~a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person~~ such third party buyer (except to the extent that such ~~disclosure is necessary~~ Liability relates to, arises out of or results from UTC’s gross negligence, willful misconduct or fraud), and (c) the provision of such applicable Services to ~~establish that~~ such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register third party buyer shall be ~~conclusive absent manifest error~~not be materially more burdensome to UTC, its Subsidiaries and ~~such Lender shall treat~~ each ~~Person whose name is recorded~~ of their respective Representatives (either alone or in ~~such Participant Register as~~ the ~~owner~~ aggregate with all other Services hereunder) than the provision of such ~~participation for all purposes of this Agreement notwithstanding any notice~~ applicable Services prior to ~~the contrary. For the avoidance of doubt~~such divestiture, ~~the Administrative Agent (in its capacity as Administrative Agent) shall have~~ including by requiring no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 greater amount or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy frequency of any such ~~representations~~ Services and being subject to no greater requirements or ~~agreements~~ standards (other than the segregation of the services as contemplated above); provided, further, that under no circumstances shall ~~have been furnished~~ UTC be required to agree to provide any such applicable Services to such third party buyer if doing so would adversely impact (other than de minimis impacts) the cost, burden, liability or risk associated with providing such applicable Services compared to the ~~Borrower~~ cost, burden, liability and ~~(D) any~~ risk associated with providing such ~~representations~~ applicable Services to Carrier or ~~agreements shall run~~ ▇▇▇▇, as applicable, prior to ~~the benefit of and be enforceable by the Borrower. (f) Notwithstanding~~ such divestiture, or otherwise cause any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice non-de minimis disruption to or ~~consent of~~ adverse impact on the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoUTC Business.

Appears in 4 contracts

Sources: Transition Services Agreement (Otis Worldwide Corp), Transition Services Agreement (Carrier Global Corp), Transition Services Agreement (Otis Worldwide Corp)

Assignability. (a) ~~Each Lender may~~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 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 it~~and 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 Lender~~Seller’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(e~~3(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(g~~29 (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 ~~2.10~~3(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 occurred~~assigned 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 participation~~payment 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 on~~for 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 ~~Participant~~participant’s interest in any ~~commitments, loans~~ rights or ~~its other~~ obligations under ~~any Facility Document~~this 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 Document~~foregoing, 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 13.06~~than 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. LICENSEE, including each Affiliate of LICENSEE, will not grant a security interest, in the License or this Agreement during the Term. This Agreement may be assigned by Cornell (~~a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee~~ so long as Cornell remains obligated for 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 as if such assignment ~~(A) shall~~ had not ~~be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant~~ occurred), but is personal to ~~this clause (i)(A) to a Disqualified Institution)~~ LICENSEE and ~~(B) shall not be required if the assignee is a Permitted Assignee~~ assignable by LICENSEE only 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 Cornell, which consent shall not be unreasonably refused or delayed. Notwithstanding the ~~Agents and the Lenders.~~ foregoing, LICENSEE may, without Cornell’s prior written consent, (i) ~~Any Lender may~~assign this Agreement, ~~without~~ in whole or in part, to any Affiliate at any time (so long as LICENSEE remains obligated for all obligations under this Agreement as if such assignment had not occurred) and (ii) during the ~~consent of~~Term to a third-party, ~~but with notice to~~in each case only if all the following conditions are met: (a) if applicable, the ~~Borrower~~assignment occurs in connection with a merger, ~~sell participations~~ acquisition, consolidation or other business combination or sale or other disposition of all or substantially all of LICENSEE’s business or assets relating to ~~Participants~~ the subject matter hereof; and (b) LICENSEE is in good standing with respect to this Agreement; and (c) if assignee is an Affiliate, every Affiliate is in good standing in all ~~or a portion~~ material respects with respect to every agreement that such Affiliate has with Cornell; and (d) assignee (including each affiliate of ~~such Lender~~assignee) is not an Excluded Entity; and (e) assignee has sufficient resources to fulfill all of LICENSEE’s ~~rights~~ obligations under this Agreement; and (f) prior to the assignment, assignee provides Cornell written confirmation that assignee shall assume all of LICENSEE’s interests, rights, duties, liabilities 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~~ comply with all terms 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 conditions 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 assignee were 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 original party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerAgreement. (f) 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: License Agreement (Lexeo Therapeutics, Inc.), License Agreement (Lexeo Therapeutics, Inc.), License Agreement (Lexeo Therapeutics, Inc.)

Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the ~~Borrower~~Borrower (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~~Commitment); 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~~15.06(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~~15.01); and (iii) ~~or (y)~~ no such assignment ~~is required as~~ shall be made to a ~~result of any Change in Law~~natural 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(g~~15.03(g). Notwithstanding any other provision of this Section ~~13.06~~15.06, ~~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 permitted~~such 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(c~~15.06(c) and Sections 15.09(b), ~~Section 13.06(d), Section 13.06(e)~~ 15.15 and ~~Section 13.17~~15.19. 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 ~~Participant~~participant’s interest in any ~~commitments~~Commitments, ~~loans~~ Advances or its other obligations under ~~any Facility Document~~this 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 ~~commitment~~Commitment, ~~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 Regulations~~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 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 hereto~~the Borrower’s Affiliates.

Appears in 3 contracts

Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), 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~~ This Agreement shall be binding upon and inure to the ~~consent~~ benefit of the ~~Administrative Agent~~ Parties and ~~the Borrower~~their respective successors and permitted assigns; provided, ~~assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it~~however, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:~~ that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower Carrier may not assign its rights or delegate its obligations ~~hereunder or any interest herein~~ under this Agreement without the express prior written consent of UTC, (ii) Otis may not assign its rights or delegate its obligations under this Agreement without the ~~Agents~~ express prior written consent of UTC, (iii) UTC may not assign its rights or delegate its obligations with respect to Carrier under this Agreement without the express prior written consent of Carrier and (iv) UTC may not assign its rights or delegate its obligations with respect to Otis under this Agreement without the ~~Lenders~~express prior written consent of Otis. (ib) ~~Any Lender may~~Notwithstanding the foregoing and without limiting UTC’s rights pursuant to Section 5.03(c), ~~without~~ no consent shall be required pursuant to Section 8.08(a) for the ~~consent of, but with notice to, the Borrower, sell participations to Participants in all or~~ assignment of a ~~portion of such Lender~~Party’s rights and obligations under ~~this~~ the Separation and Distribution Agreement~~; provided that (A) such participant is not a Disqualified Lender~~, ~~(B) such Lender’s obligations under~~ this Agreement ~~shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents~~ and the other ~~Lenders shall continue to deal solely and directly with~~ Ancillary Agreements in whole (i.e., the assignment of such ~~Lender in connection with such Lender~~Party’s rights and obligations under the Separation and Distribution Agreement, this Agreement and all the other Ancillary Agreements all at the same time) in connection with a merger, consolidation or other business combination of such Party with or into any other Person or a sale of all or substantially all of the assets of such Party to another Person, in each case so long as the resulting, surviving or acquiring Person assumes all the obligations of such applicable Party by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the Party or Parties whose consent would otherwise be required pursuant to Section 8.08(a). The Parties agree that if Carrier or Otis divests a business or portion of a business to a third party buyer while such business (Eor portion thereof, as applicable) ~~each Participant~~ is receiving Services under this Agreement, and the unavailability of the Services for the remaining applicable Service Period would materially and adversely impact such divested business (or portion thereof, as applicable) or Carrier’s or ▇▇▇▇’, as applicable, ability to successfully complete such divestiture, upon the written request of Carrier or ▇▇▇▇, as applicable, UTC and Carrier or ▇▇▇▇, as applicable, will cooperate in good faith and use commercially reasonable efforts to agree on a mutually acceptable and commercially reasonable plan to permit such divested business (or portion thereof, as applicable), but, for clarity, not any portion of the applicable third party buyer’s businesses or operations other than solely such divested business (or portion thereof, as applicable), to continue to receive the applicable Services during the remaining applicable Service Period consistent with the terms and conditions hereof, such plan to include, if mutually acceptable and commercially reasonable, any appropriate set-up or similar activities to segregate, as appropriate, the services provided to the divested business (or portion thereof, as applicable) from those provided to Carrier or ▇▇▇▇, as appropriate, and if and when such plan to segregate the services for such divested business (or portion thereof, as applicable) is mutually agreed (or if not mutually agreed, so long as UTC and Carrier or ▇▇▇▇, as applicable, shall have ~~agreed to be bound by this Section 13.06(c~~determined that such plan is not necessary after cooperating in good faith), ~~Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation~~ UTC shall provide ~~that~~ such ~~Lender shall retain~~ services to such divested business (or portion thereof, as applicable) on the ~~sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement~~terms set out herein; provided that (a) the third party buyer, pursuant to an agreement with Carrier or ▇▇▇▇, as applicable, assumes all obligations of Carrier or ▇▇▇▇, as applicable, under this Agreement in respect of such divested business (or portion thereof) and such applicable Services which agreement ~~may provide~~ shall be in form and substance reasonably satisfactory to UTC, and shall also specify that ~~such Lender will not, without~~ other than the ~~consent~~ preparation for and provision of the ~~Participant~~applicable Services and any necessary interaction with the third party buyer in connection therewith, ~~agree to any Fundamental Amendment. Sections 2.10~~UTC need only communicate and interact with Carrier or ▇▇▇▇, ~~2.11~~as applicable, and ~~13.03~~ not such third party buyer, including with respect to invoicing, for which UTC shall ~~apply~~ invoice Carrier or ▇▇▇▇, as applicable, and Carrier or ▇▇▇▇, as applicable, shall remit payment to ~~each Participant as if it were a Lender and had acquired its interest by assignment pursuant to~~ UTC, (b) notwithstanding the foregoing clause (a) of and in addition to (but not in duplication of) its other indemnification obligations (if any) under the Separation and Distribution Agreement, this ~~Section 13.06 (subject to the requirements and limitations set forth in Section 13.03~~Agreement or any other Ancillary Agreement, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, Carrier or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ , as ~~nonfiduciary agent for the Borrower~~ applicable, shall ~~maintain a register on which it enters the name~~ indemnify, defend and ~~address~~ hold harmless UTC, its Subsidiaries and each of ~~all participants in the Advances held by it~~ their respective Representatives, and ~~the principal amount of (and stated interest on)~~ each of the ~~portion~~ successors and assigns of any of the ~~Advance which is~~ foregoing, from and against any and all Liabilities relating to, arising out of or resulting from the ~~subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all~~ sale, delivery or ~~any portion of the Participant Register (including the identity~~ provision of any ~~Participant or any information relating~~ such Services to ~~a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person~~ such third party buyer (except to the extent that such ~~disclosure is necessary~~ Liability relates to, arises out of or results from UTC’s gross negligence, willful misconduct or fraud), and (c) the provision of such applicable Services to ~~establish that~~ such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register third party buyer shall be ~~conclusive absent manifest error~~not be materially more burdensome to UTC, its Subsidiaries and ~~such Lender shall treat~~ each ~~Person whose name is recorded~~ of their respective Representatives (either alone or in ~~such Participant Register as~~ the ~~owner~~ aggregate with all other Services hereunder) than the provision of such ~~participation for all purposes of this Agreement notwithstanding any notice~~ applicable Services prior to ~~the contrary. For the avoidance of doubt~~such divestiture, ~~the Administrative Agent (in its capacity as Administrative Agent) shall have~~ including by requiring no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 greater amount or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy frequency of any such ~~representations~~ Services and being subject to no greater requirements or ~~agreements~~ standards (other than the segregation of the services as contemplated above); provided, further, that under no circumstances shall ~~have been furnished~~ UTC be required to agree to provide any such applicable Services to such third party buyer if doing so would adversely impact (other than de minimis impacts) the cost, burden, liability or risk associated with providing such applicable Services compared to the ~~Borrower~~ cost, burden, liability and ~~(D) any~~ risk associated with providing such ~~representations~~ applicable Services to Carrier or ~~agreements shall run~~ ▇▇▇▇, as applicable, prior to ~~the benefit of and be enforceable by the Borrower. (f) Notwithstanding~~ such divestiture, or otherwise cause any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice non-de minimis disruption to or ~~consent of~~ adverse impact on the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoUTC Business.

Appears in 3 contracts

Sources: Transition Services Agreement (Raytheon Technologies Corp), Transition Services Agreement (Otis Worldwide Corp), Transition Services Agreement (Carrier Global Corp)

Appears in 3 contracts

Sources: Revolving Credit and Security Agreement (Barings Private Credit Corp), Revolving Credit and Security Agreement (Blackstone Private Credit Fund), Revolving Credit and Security Agreement (Barings Private Credit Corp)

Assignability. (a) ~~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 ~~Borrower~~benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Buyer may 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 it~~more 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 Lender~~Buyer’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 Lender~~Buyer’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 Participant~~other 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 doubt~~Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to ~~any Person unless (A) such Person shall have represented and agreed~~ 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 Borrower~~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 3 contracts

Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)

Assignability. This Agreement shall not be assignable by any Party hereto without the prior written consent of the other Party except that (a) ~~Each Lender may, with the consent of the Administrative Agent and the Borrower,~~ Buyer may assign ~~to an assignee all or a portion of~~ its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event Affiliate of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein Buyer without the prior written consent of Seller provided that such assignee continues to be an Affiliate of Buyer; (b) Seller may assign its rights and obligations hereunder to any acquiror of all or substantially all of the ~~Agents~~ assets of Seller, including an assignment by operation of law, without the prior written consent of Buyer and (c) Seller may assign any or all of its right to receive payments hereunder without the ~~Lenders.~~ prior written consent of Buyer; provided, however, that no such assignment by any Party shall relieve such Party of any of its obligations hereunder; provided, further, no such assignment, or series or assignments, shall result in either (i) ~~Any Lender may~~Buyer being obligated to pay the Purchase Price or any portion thereof to more than one Person, ~~without the consent of~~(ii) Buyer being required to register, ~~but~~ or being deemed to be in violation of registration obligations with ~~notice~~ respect to, any securities under the ~~Borrower~~Securities Act of 1933, ~~sell participations to Participants in all~~ as amended, or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (becoming subject to the reporting requirements ~~and limitations set forth~~ of the Securities Exchange Act of 1934, as amended, pursuant to Section 12(b), 12(g) or 15(d) thereof, or becoming subject to the application of similar securities laws in ~~Section 13.03~~any other jurisdiction, ~~including the requirements under Section 13.03(g)); provided that~~ or (Aiii) ~~such Participant agrees~~ Buyer being deemed to be ~~subject~~ in privity of contract with, or to owe fiduciary duties directly to, more than five Persons (excluding holders of securities that are unrelated to the transactions pursuant to this Agreement), in each case without Buyer’s prior written consent. Any assignment contrary to the provisions of ~~Section 13.03(g) as if it were an assignee under clause (a) of~~ this Section ~~13.06 and (B) no Participant~~ 6.8 shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to null and void. To the extent ~~such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) In the event that~~ any ~~Lender sells participations in any portion~~ assignment by Buyer of its rights ~~and~~ or obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating hereunder to a ~~Participant’s interest in any commitments, loans~~ person or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of entity outside the United States ~~Treasury Regulations and Section 1.163-5(b) of~~ or Canada would result in adverse withholding tax consequences to Seller, Buyer shall pay Seller additional amounts sufficient to put Seller in the ~~proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and~~ position Seller would have occupied but for such ~~Lender shall treat each Person whose name is recorded in such Participant Register as the owner~~ transfer or exercise of such ~~participation for all purposes of this Agreement notwithstanding any notice~~ rights or obligations, limited to the ~~contrary. For the avoidance~~ amount of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing withholding pursuant to the ~~Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”)~~ applicable reduced withholding tax rate provided for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Noteapplicable income tax treaty, if any, ~~evidencing~~ between Canada and the ~~same) may be assigned~~ jurisdiction of the party exercising Buyer’s rights or ~~sold in whole or in part only by registration~~ subject to Buyer’s obligations, provided that the benefits of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amountstreaty are available. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 3 contracts

Sources: Option Agreement (QLT Inc/Bc), Asset Purchase and Sale Agreement (QLT Inc/Bc), Option Agreement (QLT Inc/Bc)

Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the ~~Borrower~~Borrower (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~~Commitment); 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~~16.06(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~~16.01); (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 Law~~its Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent~~Agent and the Borrower) an Assignment and Acceptance and the applicable tax forms required by Section ~~13.03(g~~16.03(g) and (j). Notwithstanding any other provision of this Section ~~13.06~~16.06, ~~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 permitted~~such 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(e~~16.06(c) and ~~Section 13.17~~Sections 15.09(b) and 15.15 and (E) each Participant shall have a short term rating of at least “A-2/P2” by S&P and M▇▇▇▇’▇, respectively. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 16.06(f) with respect to any Participant. Sections 2.09, 2.10, ~~2.11,~~ and ~~13.03~~ 16.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to ~~clause~~ paragraph (a) of this ~~Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))~~Section; provided that ~~(A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B)~~ no Participant shall be entitled to any amount under Section 2.09, 2.10, ~~2.11,~~ or ~~13.03~~ 16.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred~~, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation~~. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ~~▇▇▇▇▇▇~~ Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name ~~and address~~ of all participants in the Advances held by it and the principal amount of (and stated interest onthereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any ~~Participant~~ participant or any information relating to a ~~Participant~~participant’s interest in any ~~commitments~~Commitments, ~~loans~~ Loans or its other obligations under ~~any Facility Document~~this Agreement) ~~to any Person~~ except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~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 Regulations~~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 error, and such Lender shall treat each Person whose name is recorded in ~~such~~ the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~13.02~~ 16.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance ~~(and a Note, if any, evidencing the same)~~ may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and ~~each Note, if any, shall expressly so provide) and compliance~~ in accordance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts16.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its ~~Individual Lender Maximum Funding Amount~~ Commitment to any Person unless ~~(A)~~ such Person ~~shall have represented and agreed in writing that it~~ is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 3 contracts

Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)

Assignability. (a) 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 ~~Borrower~~loan 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 13.06~~Existing 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 (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 14.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to be a party hereto). (bd) ~~Borrower may not assign its rights or obligations hereunder or~~ Upon the occurrence and during the continuation of any ~~interest herein without the prior written consent~~ Event of ~~the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to~~Default, the ~~Borrower~~Term B Lenders shall have the option to require any Lender that is not participating in the Term B Loans to assign, ~~sell participations to Participants in~~ at par plus all ~~or a portion~~ accrued interest and fees, all of such Lender’s rights and obligations under the Credit Agreement to the Term B Lenders so long as the parties provide for the termination of the Existing Commitment of each of the assigning Lenders and an increase in the Existing Commitments of one or more of the Term B Lenders accepting such assignment, so that the Existing Commitments, after giving effect to such assignment, shall be in the same aggregate amount as the Existing Commitments immediately before giving effect to such assignment. The foregoing right may be exercised by one or more of the Term B Lenders at any time upon notice to the Agent and the other Lenders, provided that the Agent shall thereupon notify the other Term B Lenders of the exercise of such option and each of the other Term B Lenders shall have five (5) Business Days to notify the Agent of such other Term B Lender’s intention to participate in such purchase on a pro rata basis with those other Term B Lenders which have elected to participate in the purchase. The Agent shall thereupon take all actions needed to complete the assignment in accordance with the same procedures used under subparagraph (c) above within five (5) additional Business Days and each of the Term B Lenders shall remit to the Agent for payment to the selling Lender the full amount of its purchase price. The Term B Lenders purchasing hereunder shall pay the assignment fee to the Agent as contemplated by Section 14.6(c) above. (e) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Credit Agreement or any other instrument or document furnished pursuant hereto, (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the financial statements referred to in Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Credit Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender. (f) The Agent shall maintain at its address referred to in Section 14.5 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the aggregate commitments of, and principal amount of the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by each Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (g) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together with the Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to each Borrower. Within five (5) Business Days after its receipt of such notice, each applicable Borrower shall execute and deliver to the Agent in exchange for the surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to the applicable Borrower) a new Note or Notes to the order of the assignee in an amount equal to the Existing Commitment and/or outstanding Term B Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained an Existing Commitment and/or outstanding Term B Loans, a new Note or Notes to the order of the assigning Lender in an amount equal to the Existing Commitment and/or outstanding Term B Loans retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the Closing Date and shall otherwise be in substantially the form of the Note or Notes subject to such assignments. (h) Each Lender may sell participations (without the consent of the Agent, any Borrower or any other Lender) to one or more parties in or to any portion of its rights and obligations under this Credit Agreement (including, without limitation, any portion of its Existing Commitment, the Loans owing to it and the Note or Notes held by it); provided that (~~A) such participant is not a Disqualified Lender, (B~~i) such Lender’s obligations under this Credit Agreement (including, without limitation, its Existing Commitment to any Borrower hereunder) shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Diii) such Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) each Borrower, the ~~Agents~~ Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement and (Ev) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall ~~retain~~ not transfer, grant, assign or sell any participation under which the ~~sole right to enforce this Agreement and~~ participant shall have rights to approve any ~~amendment, modification~~ amendment or waiver of ~~any provision of~~ this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, Credit Agreement except to the extent such ~~entitlement~~ amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to ~~receive a greater amount results from a Change~~ the Loans or Letter of Credit reimbursement obligations in ~~Law that occurs after the Participant acquired the applicable participation~~which such participant is participating, or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder. (iii) Each Lender agrees that, without the prior written consent of each Borrower and the Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Note or other Obligation under the securities laws of the United States of America or of any jurisdiction. (j) In connection with the ~~event that~~ efforts of any Lender ~~sells participations in any portion of~~ to assign its rights ~~and~~ or obligations ~~hereunder~~or to participate interests, such ~~▇▇▇▇▇▇ as nonfiduciary agent for the~~ Lender may disclose any information in its possession regarding any Borrower. (k) Each Borrower shall ~~maintain~~ maintain, or cause to be maintained, a register (the “Borrower Register”) on which it enters the name ~~and address~~ of ~~all participants in~~ each Lender as the ~~Advances~~ registered owner of the Loans held by it such Lender. A Registered Loan (and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, ~~shall expressly so provide~~evidencing the same) ~~and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and~~ may be effected only by registration of such assignment or sale on the Borrower ~~from time to time~~ Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such Registered Note, whereupon, at the request of the ~~Collateral Agent~~ designated assignee(s) or transferee(s), one or more new Registered Notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the Registered Note, if any evidencing the same), each Borrower ~~an updated version~~ shall treat the Person in whose name such Loan (and the Registered Note, if any, evidencing the same) is registered as the owner thereof for the purpose of ~~Schedule 1 reflecting~~ receiving all payments thereon and for all other purposes, notwithstanding notice to the ~~then-current allocation of the Individual Lender Maximum Funding Amounts~~contrary. (el) ~~Notwithstanding anything to~~ In the ~~contrary set forth herein or in~~ event that any ~~other Facility Document, each~~ Lender ~~hereunder, and each Participant, must at all times be a “qualified purchaser” as defined~~ sells participations in the ~~Investment Company Act~~ Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (a the “~~Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB~~Participant Register”). ~~Each Lender represents to~~ A Registered Loan (and the ~~Borrower~~Registered Note, (iif any, evidencing the same) may be participated in whole or in part only by registration of such participation on the ~~date that it becomes a party to this Agreement~~ Participant Register (~~whether by being a signatory hereto or by entering into an Assignment~~ and ~~Acceptance) and (ii) on~~ each ~~date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB~~Registered Note shall expressly so provide). Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time Any participation of such ~~assignment or participation~~Registered Loan (and the Registered Note, (Bif any, evidencing the same) ~~such Person agrees that it will~~ may be ~~bound~~ effected only by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations registration of such ~~Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of~~ participation on the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoParticipant Register.

Appears in 3 contracts

Sources: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)

Assignability. (a) ~~Each~~ 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 ~~Borrower~~Lender Group of which it is a member, assign ~~to an assignee~~ at any time all or a any portion of its rights and obligations ~~under this Agreement~~ hereunder and interests herein to any Person; provided, however, that the consent of the Borrower shall not be required in connection with any assignment by a Committed Lender (~~including all~~ i) if an Event of Termination has occurred and is continuing or ~~a portion of its outstanding Advances or interests therein owned by it~~(ii) to any other Lender. (c) With respect to any assignment hereunder, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:~~ (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement; (ii) the ~~Borrower’s and the Administrative Agent’s consent~~ amount being assigned pursuant to ~~any~~ each such assignment (~~A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution)~~ determined as of the date of the Assignment and ~~(B) shall not be required if the assignee is a Permitted Assignee~~ Acceptance with respect to such ~~assignor; and~~ assignment) shall in no event be less than $10,000,000, and (iiiii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative ~~Agent~~ Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a ~~copy~~ processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the ~~Collateral Agent~~extent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (d) At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The Aggregate Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the ~~applicable tax forms required by Section 13.03(g)~~Register shall serve as a record of ownership that identifies the owner of the Aggregate Principal Balances and any interest therein. Notwithstanding any other provision of this ~~Section 13.06~~Agreement, no ~~assignment by any Lender to~~ transfer of the ~~Borrower~~ Aggregate Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Administrative Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of ~~its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing~~this Agreement. This Section 10.03(d) shall be ~~permitted~~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 Administrative Agent will act as an agent of the Borrower. The Register shall be available for inspection by the Borrower, the Servicer or any Managing Agent at any reasonable time and from time to time upon reasonable prior notice. (be) ~~Borrower may not assign~~ Upon its ~~rights or obligations hereunder or any interest herein without~~ receipt of an Assignment and Acceptance, the ~~prior written consent of~~ Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the ~~Agents~~ information contained therein in the Register and (iii) give prompt notice thereof to the ~~Lenders~~Borrower. (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 Agreement~~hereunder (including the outstanding Loan); ~~provided~~ provided, that ~~(A) such participant is not~~ following the sale of a ~~Disqualified Lender, (B) such Lender’s obligations~~ participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Diii) ~~such~~ the Borrower, the ~~Agents~~ Administrative Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17~~Agreement. 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 ~~Agreement~~Agreement or the other Facility Documents; ~~provided~~ provided, that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any ~~Fundamental Amendment. Sections 2.10~~amendment, ~~2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest~~ modification or waiver that (i) reduces the amount of principal or Interest that is payable on account of any Loan or delays any scheduled date for payment thereof or (ii) reduces any fees payable by ~~assignment pursuant to clause (a) of this Section 13.06 (subject~~ the Borrower to the ~~requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that~~ Administrative Agent (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent relating to payments to the Participant) or delays any scheduled date for payment of such ~~entitlement~~ fees. The Borrower acknowledges and agrees that any Lender’s source of funds may derive in part from its Participants. Accordingly, references in Sections 2.11 or 2.13 and the other terms and provisions of this Agreement and the other Facility Documents to ~~receive~~ determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants; provided, however, that in no event shall the Borrower be liable to any Participant under Sections 2.11 or 2.13 for an amount in excess of that which would be payable to the applicable Lender under such sections other than as a ~~greater amount results from~~ result of a ~~Change~~ change in ~~Law that occurs~~ law after the Participant acquired its interest. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the ~~applicable participation. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder~~Borrower, ~~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 on~~interest) of each Participant’s interest in the ~~portion of~~ Loans or other obligations under the ~~Advance which is the subject of the participation~~ Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, ~~loans~~ loans, letters of credit or its other obligations under any ~~Facility~~ Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, ~~loan~~ loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury ~~Regulations and Section 1.163-5(b) of the proposed United States Treasury~~ Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~such~~ the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (dg) ~~The Administrative Agent, on behalf~~ Neither the Borrower nor the Servicer may assign any of ~~and acting solely for this purpose as~~ its rights or obligations hereunder or any interest herein without the ~~nonfiduciary agent~~ prior written consent of ~~the Borrower, shall maintain at its address specified in Section 13.02 or such other address as~~ the Administrative Agent ~~shall designate in writing to the Lenders, a copy of this Agreement~~ and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding AmountsManaging Agent. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (fh) Notwithstanding any other provision of this ~~Section 13.06~~Agreement 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 ~~interest~~Interest with respect thereto) ~~under this Agreement~~ hereunder to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Lender to (i) a Federal Reserve ~~Bank~~Bank or (ii) to a collateral agent or security trustee in connection with the funding by such Lender, without notice to or consent of the Borrower or the Administrative Agent; ~~provided~~ provided, that no such pledge or grant of a security interest shall release ~~such~~ a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 3 contracts

Sources: Loan and Servicing Agreement (Newell Brands Inc.), Loan and Servicing Agreement (Newell Brands Inc), Loan and Servicing Agreement (Newell Brands Inc)

Assignability. (a) ~~Each~~ The rights and obligations of the parties under this Agreement, the Note and under any Advance shall not be assigned by any Borrower without the prior written consent of Lender. Subject to the foregoing, this Agreement, the Note and any Advance shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Lender may, ~~with~~ upon at least five (5) Business Days’ notice to Borrowers, from time to time assign all or a portion of its rights and obligations under this Agreement, the ~~consent~~ Note and the other Facility Documents to any Eligible Person pursuant to executed assignment and acceptance by Lender and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the ~~Administrative Agent~~ percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the ~~Borrower~~applicable rights and obligations of Lender hereunder, ~~assign~~ and (b) Lender shall, to an the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Anything herein to the contrary notwithstanding, no Eligible Person shall be entitled to receive any greater amount hereunder than Lender would be entitled to receive. Unless otherwise stated in the Assignment and Acceptance, Borrower Parties shall continue to take directions solely from Lender unless otherwise notified by Lender in writing. Lender may distribute to any prospective assignee any document or other information delivered to Lender by Borrower Parties. (b) Lender, upon at least five (5) Business Days’ notice to Borrowers, may sell participations to one or more Eligible Persons in or to all or a portion of its rights and obligations under this Agreement ~~(including all or a portion of its outstanding Advances or interests therein owned by it~~to any Eligible Person; provided, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:~~ however, that (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (Cii) ~~such~~ Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) ~~such Borrower, the Agents and the other Lenders~~ Borrower Parties shall continue to deal solely and directly with ~~such~~ Lender in connection with ~~such~~ Lender’s rights and obligations under this Agreement and ~~(E) each Participant shall have agreed to be bound by this~~ the other Facility Documents except as provided in Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement7; provided that no such ~~agreement may provide that such Lender will not, without the consent of the Participant, agree~~ restrictions shall apply with respect to any ~~Fundamental Amendment~~sale to any Affiliate of Lender or if an Event of Default has occurred and is continuing; and provided further that Lender shall act as agent for all purchasers, assignees and point of contact for Borrowers pursuant to agency provisions to be agreed upon by Lender, its intended purchasers and/or assignees and Borrowers. Borrowers agree that each participant shall be entitled to the benefits of Sections ~~2.10~~6 and 7 (subject to the requirements and limitations therein, ~~2.11, and 13.03~~ including the requirements under Section 7(e) (it being understood that the documentation required under Section 7(e) shall ~~apply~~ be delivered to ~~each Participant~~ the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to ~~clause~~ paragraph (a) of this ~~Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g))~~Section; provided that ~~(A)~~ such ~~Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant~~ participant shall not be entitled to receive any ~~amount~~ greater payment under ~~Section 2.10~~Sections 6 or 7 with respect to any participation, ~~2.11, or 13.03 which is greater~~ than ~~the amount the related~~ its participating Lender would have been entitled to ~~under any such Sections or provisions if the applicable participation had not occurred~~receive, except to the extent such entitlement to receive a greater ~~amount~~ payment results from a ~~Change~~ change in Requirement of Law that occurs after the ~~Participant~~ participant acquired the applicable participation. Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 20, disclose to the assignee or participant or proposed assignee or participant, as the case may be, any information relating to any Borrower Party or any of its Subsidiaries or to any aspect of the Advances that has been furnished to Lender by or on behalf of any Borrower Party or any of its Subsidiaries; provided that such assignee or participant agrees to hold such information subject to the confidentiality provisions of this Agreement. (iic) In the event ~~that any~~ Lender ~~sells participations in any~~ assigns all or a portion of its rights and obligations ~~hereunder~~under this Agreement, ~~such ▇▇▇▇▇▇~~ the parties hereto agree to negotiate in good faith an amendment to this Agreement to add agency provisions similar to those included in loan agreements for similar syndicated lending facilities. (d) Lender hereby agrees that it shall, endorse the Note to reflect any assignments made pursuant to this Section 20 or otherwise. (e) Lender, acting solely for this purpose as ~~nonfiduciary~~ a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the ~~Borrower~~ recordation of the names and addresses of the Lender (including any successor, assignee or participant), and the percentage of such rights and obligations assigned (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrowers and the Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers and the Lender, at any reasonable time and from time to time upon reasonable prior notice. (f) The Lender, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of ~~all participants in the Advances held by it~~ each Participant and the ~~principal amount~~ percentage of (such rights and ~~stated interest on)~~ obligations of ~~the portion of the Advance which is the subject of the participation~~ each Participant hereunder (the “Participant Register”); provided that no Lender shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s 's interest ~~in any commitments, loans or its other obligations under any Facility Document~~herein) to any Person except to the extent that such disclosure is necessary to establish that such ~~commitment, loan or other obligation~~ interest is in registered form under Section 5f.103-1(c) of the United States Treasury ~~Regulations and Section 1.163-5(b) of the proposed United States Treasury~~ Regulations. The entries in a the Participant Register shall be conclusive absent manifest error, and ~~such~~ the Lender shall treat each Person whose name is recorded in ~~such~~ the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 3 contracts

Sources: Loan and Security Agreement (Front Yard Residential Corp), Loan and Security Agreement (Altisource Residential Corp), Loan and Security Agreement (Altisource Residential Corp)

Assignability. (a) ~~Each Lender may~~This 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 Agent~~ Seller and the ~~Borrower~~Agent; 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 it~~however, ~~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 delayed~~withheld; ~~(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 or (iii) any Program Support Provider (or any Person who upon such assignment would be a Program Support Provider) of such Purchaser. 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 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 ~~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 Transaction Documents and the ~~applicable tax forms required by Section 13.03(g~~Investment (or such portion thereof as has been assigned). 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~~ 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 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 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 AmountsMajority Purchasers. (e) ~~Notwithstanding anything to the contrary set forth herein or in~~ Without limiting any other ~~Facility Document~~rights 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 by it ~~becomes a party to this Agreement (whether by being a signatory hereto~~ directly 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 3 contracts

Sources: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (Carbuyco, LLC), Receivables Purchase Agreement (Adesa California, LLC)

Assignability. ~~(a) Each Lender may~~This 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 Lender~~LICENSEE’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 Register~~Non-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 “~~Register~~Change 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 ~~Borrower~~Administrative 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 Amount~~Commitment); 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; and~~Lender 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(a~~12.06(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(g~~12.06(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 ~~13.06~~12.06, (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 permitted~~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,~~ 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(c~~12.06(c), Section ~~13.06(d~~12.06(e), Section ~~13.06(e)~~ 12.09 and Section ~~13.17~~12.16. 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 2.10~~Sections 2.09 or 12.03, ~~2.11~~with 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 occurred~~receive, 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 Document~~hereunder) 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 Agreement~~the 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 ~~Note~~Note 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 ~~13.06~~12.06, 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) 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 ~~Borrower~~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 Agreement ~~(including all or a portion of its outstanding Advances or interests therein owned by it~~and 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(g~~assignee, 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 13.06~~Agreement 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, (B~~i) 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 participation~~rights 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 Register~~jurisdiction. (di) ~~The Administrative Agent~~In 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) 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 ~~Borrower~~Transferor 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 permitted~~the 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 Agent~~Without limiting any other rights that may be available under applicable law, ~~on behalf of and acting solely for this purpose as~~ the ~~nonfiduciary agent~~ rights of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) Transferees may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto enforced through them or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrowertheir agents. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 2 contracts

Sources: Receivables Transfer Agreement (Ikon Office Solutions Inc), Receivables Transfer Agreement (Ios Capital Inc)

Assignability. (a) ~~Each~~ 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 ~~Borrower~~Administrative 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 Amount~~Commitment); 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; and~~Lender 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(a~~12.06(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 ~~Law~~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. 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(g~~12.06(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 ~~13.06~~12.06, (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 permitted~~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,~~ 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(c~~12.06(c), Section ~~13.06(d~~12.06(e), Section ~~13.06(e)~~ 12.09 and Section ~~13.17~~12.16. 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 2.10~~Sections 2.09 or 12.03, ~~2.11~~with 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 occurred~~receive, 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 Document~~hereunder) 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 Agreement~~the 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 ~~Note~~Note 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 ~~13.06~~12.06, 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~~ 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(g~~8.03(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 continuing~~8.06(a) shall be ~~permitted~~treated 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 Lenders~~Lender. (i) ~~Any~~ The Lender may, without the consent ~~of, but with notice to,~~ of the ~~Borrower~~Borrowers, 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(c~~8.06(c), Section ~~13.06(d), Section 13.06(e~~8.06(e) and Section ~~13.17~~8.16. 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 ~~Amendment~~Amendment that affects such Participant. ~~Sections 2.10~~Section 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 Agent~~Notwithstanding 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 error~~Federal 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 and the ~~Borrower~~Borrower (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~~Commitment); 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~~15.06(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~~15.01); and (iii) ~~or (y)~~ no such assignment ~~is required as~~ shall be made to a ~~result of any Change in Law~~natural 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(g~~15.03(g). Notwithstanding any other provision of this Section ~~13.06~~15.06, ~~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 permitted~~such 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(c~~15.06(c) and Sections 15.09(b), ~~Section 13.06(d), Section 13.06(e)~~ 15.15 and ~~Section 13.17~~15.19. 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 ~~Participant~~participant’s interest in any ~~commitments~~Commitments, ~~loans~~ Advances or its other obligations under ~~any Facility Document~~this 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 ~~commitment~~Commitment, ~~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 Regulations~~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 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 hereto~~the Borrower’s Affiliates.

Appears in 2 contracts

Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)

Assignability. (a) ~~Each~~ Any Conduit Lender may, (i) with notice to the Borrower and the Servicer, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Conduit Lender’s sponsor or administrator bank (C) any Affiliate of such Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Conduit Lender and (ii) with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any other Person not listed in clause (i) above; provided that the consent of the Borrower shall not be required if an Event of Termination has occurred and is continuing. Any Managing Agent may, with notice to the Borrower and the Servicer, and with the consent of the Lenders in its Lender Group, assign at any time all or any portion of its rights and obligations hereunder and interests herein to any Lender or to any Affiliate of such Managing Agent or any Lender. (b) Any Committed Lender may, with the consent of the ~~Administrative~~ Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and with the consent of the Managing Agent ~~and~~ for the ~~Borrower~~Lender 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; and~~Agreement, (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(a~~such 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 Agent~~extent 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 13.06~~Agreement, 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 permitted~~from time to time upon reasonable prior notice. (be) ~~Borrower may not assign~~ Upon its ~~rights or obligations hereunder or any interest herein without~~ receipt of an Assignment and Acceptance, the ~~prior written consent of~~ 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 ~~Lenders~~Borrower. (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 Agreement~~hereunder (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 13.17~~Agreement. 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 ~~Agreement~~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 ~~Fundamental Amendment. Sections 2.10~~amendment, ~~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 hereunder~~Participants. 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 Amounts~~under 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 13.06~~Agreement 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 ~~interest~~Interest with respect thereto) ~~under this Agreement~~ hereunder to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the ~~Administrative~~ Program Agent; ~~provided~~ provided, that no such pledge or grant of a security interest shall release ~~such~~ a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 2 contracts

Sources: Loan and Servicing Agreement (Puget Sound Energy Inc), Loan and Servicing Agreement (Puget Energy Inc /Wa)

Assignability. (a) ~~Each Lender may, with~~ The 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 Borrower~~Buyer, 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, 2.11~~Seller, 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(g~~29 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 2.10~~Sections 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 occurred~~assigned 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 ~~participation~~interest. (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 on~~for 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 ~~Participant~~participant’s interest in any ~~commitments, loans~~ rights or ~~its other~~ obligations under ~~any Facility Document~~this 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 Document~~foregoing, 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 13.06~~than 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) 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 ~~Borrower~~consent 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 it~~and 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(g~~assignee, 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 13.06~~Agreement 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, (B~~i) 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~~Borrowers, ~~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 not~~agrees that, without the prior written consent of ~~the Participant~~Borrowers 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 Register~~jurisdiction. (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 Note~~assign 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~~ 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 Amount~~or 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 Agent~~extent 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 13.06~~Agreement, 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 continuing~~this Agreement. This Section 10.03(c) shall be ~~permitted~~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 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 ~~Lenders~~Calculation 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 Borrower~~at 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 Agreement~~hereunder (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 Borrower~~the 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 13.17~~Agreement. 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 ~~Agreement~~Agreement 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 Amendment~~amendment, 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 occurred~~receive, 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 hereunder~~Borrower, ~~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 on~~interest) 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 13.06~~Agreement 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 ~~interest~~Interest 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 ~~hereto~~hereto 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.)

Appears in 2 contracts

Sources: Revolving Credit and Security Agreement (KKR FS Income Trust Select), Revolving Credit and Security Agreement (KKR FS Income Trust Select)

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 Amount~~Commitment); 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(a~~12.06(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~~12.01). 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(g~~12.03(g). Notwithstanding any other provision of this Section ~~13.06~~12.06, 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~~permitted 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(c~~12.06(c), Section ~~13.06(d~~12.06(e), Section ~~13.06(e)~~ 12.09 and Section ~~13.17~~12.17. 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 ~~13.06~~12.06, 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. (ai) ~~Each Lender may~~Subject 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 may~~other 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 ~~hereunder~~under 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 on~~a “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 ~~Lenders~~contrary 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 Note~~foregoing, ~~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 Document~~a request for confidential treatment by Haverty Furniture Companies, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Inc. pursuant to Rule ~~144A~~ 24B-2 under the Securities Exchange Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower1934. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 2 contracts

Sources: Retailer Program Agreement (Haverty Furniture Companies Inc), Retailer Program Agreement (Haverty Furniture Companies Inc)

Assignability. (a) ~~Each Lender may~~This 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 ~~Borrower~~Insurer, ~~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~~so 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 delayed~~withheld; ~~(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 Document~~rights 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 Lender may, with the consent of the Administrative Agent and the ~~Borrower~~Borrower (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~~Commitment); 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~~16.06(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~~16.01); (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 Law~~its Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent~~Agent and the Borrower) an Assignment and Acceptance and the applicable tax forms required by Section ~~13.03(g~~16.03(g) and (j). Notwithstanding any other provision of this Section ~~13.06~~16.06, ~~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 permitted~~such 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(e~~16.06(c) and ~~Section 13.17~~Sections 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 ~~Participant~~participant’s interest in any ~~commitments~~Commitments, ~~loans~~ Loans or its other obligations under ~~any Facility Document~~this Agreement) ~~to any Person~~ except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~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 Regulations~~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 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. 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 it~~CareFusion, ~~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 ~~assignor~~acquiror; ~~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 obligations~~Cardinal Health (including respiratory, ~~(D) such Borrower~~infection prevention, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17▇. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇▇ ~~as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name~~ and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”On-Site businesses); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 2 contracts

Sources: Transition Services Agreement, Transition Services Agreement (CareFusion Corp)

Assignability. (a) ~~Each~~ 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 it~~Credit 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 continuing~~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, 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, (B~~i) 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(e~~2.4(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 2.10~~Sections 2.4 or 3.4, ~~2.11~~with 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 occurred~~receive, 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 hereunder~~Borrower, ~~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 on~~interest) 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 ~~Borrower~~United 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 ~~Lenders~~other 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 same~~agree 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 ~~assign~~be 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 in~~reason, 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 participation~~their 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 ~~Lender may, with~~ Party agrees that the ~~consent~~ entirety of the ~~Administrative Agent and the Borrower~~other 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 it~~February 13, ~~together with ratable portions~~ 2008, among EMHC, Seller, certain other subsidiaries of ~~its Individual Lender Maximum Funding Amount~~EMHC, 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(a~~Agreement 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 permitted~~the 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)

Appears in 2 contracts

Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)

Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the ~~Borrower~~Borrower (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~~Commitment); 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~~11.06(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 ~~13.01~~11.01). (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(g~~11.03(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 ~~13.06~~11.06, ~~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 permitted~~such 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(c~~11.06(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 ~~commitments~~Commitments, ~~loans~~ Advance or its other obligations under ~~any Facility Document~~this 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 ~~commitment~~Commitment, ~~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 Regulations~~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 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 ~~13.06~~11.06. ~~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 Amounts~~Code and any related regulations (and any successor provisions). (ef) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the ~~Borrower,~~ Borrower (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its ~~Individual Lender Maximum Funding Amount~~ Commitment to any Person unless ~~(A)~~ such Person ~~shall have represented and agreed in writing that it~~ is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the BorrowerQIB. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 2 contracts

Sources: Revolving Credit and Security Agreement (Compass, Inc.), Revolving Credit and Security Agreement (Compass, Inc.)

Assignability. ~~(a) Each Lender 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 ~~Borrower~~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, 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 on~~b) ~~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 QIB~~Calculation 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 Borrower~~Parties. (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.)

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~~ This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of ~~the Administrative Agent~~ GGP and ~~the Borrower~~Spinco, 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 it~~Spinco, ~~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 may~~merger, ~~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 ~~Borrower~~board 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~~ 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 Agent~~extent 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 13.06~~Agreement, 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 continuing~~this Agreement. This Section 10.03(c) shall be ~~permitted~~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 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 ~~Lenders~~Borrowers and to the Calculation Agent. (ie) Any Lender may, without the consent ~~of, but with notice to,~~ of any Loan Party (except in the ~~Borrower~~case 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 Agreement~~hereunder (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 Borrower~~the 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 13.17~~Agreement. 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 ~~Agreement~~Agreement 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 Amendment~~amendment, 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 occurred~~receive, 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 hereunder~~Borrower, ~~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 on~~interest) 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 Regulations~~Administrative 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 ~~Borrower~~Borrower 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 Note~~and, if ~~any~~applicable, ~~evidencing~~ the ~~same~~related 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 Purchaser~~Approved 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 13.06~~Agreement 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 ~~interest~~Interest 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 ~~hereto~~hereto 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.)

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 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 may~~Occam. 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 notice~~assign 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 ~~Borrower~~Parties 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 ~~13.06~~2.2 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 hereto~~of 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~~ 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 delayed~~present 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 ~~Borrower~~Company’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(a~~Agreement 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 may~~Company, ~~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 Borrower~~effect, 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)

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~~ 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 ~~Borrower~~consent 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 it~~and 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 Agent~~minimum 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(c~~a 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 thereon~~the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Borrowers, 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 interest~~of 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 ~~Lender~~participant 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 Bank~~Fees 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 hereto~~possession regarding the Borrowers.

Appears in 2 contracts

Sources: Credit Agreement (Nationsrent Companies Inc), Credit Agreement (Nationsrent Companies Inc)

Assignability. (a) ~~Each Lender may, with~~ The rights and obligations of the parties under this Agreement and under any Advance shall not be assigned by any Borrower without the prior written consent of Administrative Agent. Subject to the ~~Administrative~~ foregoing, this Agreement and any Advance shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors and permitted assigns hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Each Lender, upon at least five (5) Business Days’ written notice to Borrower Representative and Calculation Agent ~~and~~ (provided that such written notice shall not be required for any assignment by the ~~Borrower,~~ Initial Lender to SPE Lending A Trust on the date hereof) may from time to time assign ~~to an assignee~~ all or a pro rata portion of its rights and obligations under this Agreement ~~(including all or a portion~~ and the other Facility Documents to any Affiliate of ~~its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual~~ Lender ~~Maximum Funding Amount); provided that: (i) each~~ without consent of the ~~Borrower’s and the Administrative Agent’s consent~~ Borrowers, or to any other Person with prior written consent of Borrowers (such ~~assignment (A) shall~~ consent not to be unreasonably withheld or delayed; ~~(provided~~ provided, that ~~a Lender may not make any~~ no such ~~assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B)~~ consent shall ~~not~~ be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) ), pursuant to an executed assignment and acceptance by such ▇▇▇▇▇▇ and assignee (“Assignment and Acceptance”), specifying the pro rata portion of such rights and obligations assigned. Administrative Agent and each Lender acknowledges and agrees that it shall be ~~permitted~~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 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 ~~Agreement~~Agreement to any Person; ~~provided~~ provided, however, that (~~A) such participant is not a Disqualified Lender, (B~~i) 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 2.10~~Borrowers, 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 Agent~~Each 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 Borrower~~its 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~~ Party agrees that the ~~consent~~ entirety of the ~~Administrative Agent and the Borrower~~other 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 it~~February 13, ~~together with ratable portions~~ 2008, among EMHC, Seller, certain other subsidiaries of ~~its Individual Lender Maximum Funding Amount~~EMHC, 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(a~~Agreement 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 permitted~~the 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. 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 it~~SLM 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 ~~Borrower~~consent 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, (B~~i) 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 ~~Borrower~~Lender 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 participation~~which 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 commitment~~Loan, ~~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 error~~efforts 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 Register~~possession regarding Borrowers, their finances and/or Property. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 2 contracts

Sources: Loan and Security Agreement (nFinanSe Inc.), Loan and Security Agreement (nFinanSe Inc.)

Assignability. (a) ~~Each Lender may~~The 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 it~~as 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 Lender~~Person’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 Lender~~Buyer’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(c~~18(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 Agreement~~Seller 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 on~~for 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 ~~Participant~~participant’s interest in any ~~commitments, loans~~ rights or ~~its other~~ obligations under ~~any Facility Document~~this 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 Document~~foregoing, 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 13.06~~than 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~~ The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by Seller without the prior written consent of B▇▇▇▇. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Buyer may, ~~with the consent of the Administrative Agent and the Borrower~~from time to time, assign ~~to an assignee~~ all or a portion of its rights and obligations under this Agreement and the Facility Documents with the prior written consent of Seller (~~including~~ such consent not to be unreasonably delayed, conditioned or withheld) to any Person pursuant to an executed assignment and acceptance by B▇▇▇▇ and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned; provided, that, with respect to any assignment to an Affiliate of Buyer or made during the continuation of an Event of Default, no such consent from Seller shall be required. Buyer shall provide to Seller written notice of any such assignment; provided, that, the failure to give such notice shall not affect the validity of such assignment. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, Seller shall continue to take directions solely from Buyer unless otherwise notified by B▇▇▇▇ in writing. Buyer may distribute to any prospective assignee this Agreement, the Facility Documents and any document or other information delivered to Buyer by Seller. (b) Buyer, upon written notice to Seller (provided, that, the failure to give such notice shall not affect the validity of any sale pursuant to this Section 21(b)), may, from time to time, sell participations to one or more Persons in all or a portion of its ~~outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of the Borrower’s~~ rights and ~~the Administrative Agent’s consent~~ obligations under this Agreement to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee Person with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of Seller (such consent not to be unreasonably delayed, conditioned or withheld); provided, that, with respect to any such sale to an Affiliate of Buyer or made during the ~~Agents and the Lenders.~~ continuation of an Event of Default, no such consent from Seller shall be required; provided, further, that (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such LenderBuyer’s obligations under this Agreement shall remain unchanged, ; (Cii) ~~such Lender~~ Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (Diii) ~~such Borrower, the Agents and the other Lenders~~ Seller shall continue to deal solely and directly with ~~such Lender~~ Buyer in connection with ~~such Lender~~Buyer’s rights and obligations under this Agreement and the other Facility Documents except as provided in Section 8; and (Eiv) ~~each Participant~~ Buyer shall ~~have agreed~~ act as agent for all purchasers, assignees and point of contact for Seller pursuant to agency provisions to be ~~bound~~ agreed upon by ~~this Section 13.06(c)~~Buyer, ~~Section 13.06(d), Section 13.06(e)~~ its intended purchasers and/or assignees and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participationSeller. (iic) Subject to Section 32, Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 21, disclose to the assignee or participant or proposed assignee or participant, as the case may be, this Agreement, the Facility Documents and any document or other information relating to Seller or any of its Subsidiaries or to any aspect of the Transactions that has been furnished to Buyer by or on behalf of Seller or any of its Subsidiaries. (d) In the event ~~that any Lender sells participations in any~~ Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this ~~Agreement notwithstanding any notice to the contrary. For the avoidance of doubt~~Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to ~~any Person unless (A) such Person shall have represented and agreed~~ 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 Borrower~~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 2 contracts

Sources: Master Repurchase Agreement and Securities Contract (Radian Group Inc), Master Repurchase Agreement and Securities Contract (Radian Group 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 Register~~jurisdiction. (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 Borrower~~information. (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~~ 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 ~~Borrower~~Lender 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 it~~herein 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 Agent~~extent 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 13.06~~Agreement, 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 Document~~Program 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 13.06~~Agreement 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 ~~interest~~Interest 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. (a) ~~Each~~ The Borrower shall not have the right to assign this Agreement or any interest therein except with the prior written consent of the Lender. (b) The Lender ~~may~~may make, carry or transfer Loans at, to or for the account of, any of its United States branch offices or the United States office of an Affiliate of the Lender or the Lender may pledge any Loans or Notes to any Federal Reserve Bank. (c) The Lender may assign to one or more financial institutions all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it and shall provide notice thereof and a copy of the instrument of assignment to the Borrower, however, the failure by the Lender to so notify the Borrower or to provide the Borrower with a copy of the instrument of assignment shall not affect the Lender's rights hereunder. Upon the effectiveness of the assignment, (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it, 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, relinquish its rights (other than any rights it may have pursuant to Sections 10.02 and 10.10 which will survive such assignment) and be released from its obligations under this Agreement, other than with respect to Section 10.09 hereof (and, in the case of an assignment for all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, the Notes and the other Loan Documents the Lender shall cease to be a party hereto). If a bank syndicate is formed, the Lender agrees to serve as agent thereof. (d) The Lender may sell participations (without the consent of the ~~Administrative Agent and the~~ Borrower~~, assign~~ ) 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~~ 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:~~ provided, however, that (i) ~~each of~~ the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender~~’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s~~ 's obligations under this Agreement and the other Loan Documents (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (Cii) ~~such~~ the Lender shall remain solely responsible to the Borrower and the other ~~parties hereto~~ Loan Parties for the performance of such obligations, (Diii) the Lender shall remain the holder of any such ~~Borrower~~Note for all purposes of this Agreement, (iv) the ~~Agents and the other Lenders~~ Borrower shall continue to deal solely and directly with ~~such~~ the Lender in connection with ~~such~~ the Lender’s 's rights and obligations under this Agreement and (Ev) ~~each Participant~~ the 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 except to the extent such amendment or waiver would (A) extend the final maturity date or the date of the payments of any ~~provision~~ installment of fees or principal or interest of any Loans or Reimbursement Obligations in which such participant is participating, (B) reduce the amount of any installment of principal of any Loans or Reimbursement Obligations in which such participant is participating, (C) reduce the interest rate applicable to any Loans or Reimbursement Obligations in which such participant is participating, or (D) except as otherwise expressly provided in this Agreement~~; provided that such agreement may provide that such~~ , reduce any fees payable to the Lender ~~will not~~hereunder. (e) The Lender agrees that, without the prior written consent of the ~~Participant~~Borrower, ~~agree~~ 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 the Notes under the securities laws of the United States of America or of any other jurisdiction. (f) In connection with the efforts of the Lender to assign its rights or obligations or to participate interests, the Lender may disclose to any ~~Fundamental Amendment. Sections 2.10~~proposed participant and their counsel any information in its possession regarding the Borrower or any Loan Party, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant 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 participation10.09. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 1 contract

Sources: Credit Agreement (Travel Services International 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 ~~Borrower~~Administrative 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 Amount~~Commitment); 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; and~~Lender 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(a~~12.06(a) shall not be required if ~~(x)~~ an Event of Default shall have occurred and be continuing; and (~~and~~ iii) notwithstanding anything herein to the contrary, each Lender may make an assignment to any Person with notice to, but without the consent of, the Borrower or the Administrative Agent if such Lender makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, to the extent not ~~been waived~~ prohibited by applicable law, obligation of privilege or a binding confidentiality agreement (not entered into in contemplation of such assignment), such notice shall identify the ~~Lenders in accordance with Section 13.01) or (y)~~ material regulatory reasons necessitating such assignment or participation; provided, further, that, prior to approaching any such prospective assignee or making any such assignment under this clause (iii), such Lender will use reasonable efforts -159- DOCPROPERTY "DocID" \* MERGEFORMAT USActive 60781347.5 to consult in good faith with the Borrower to designate an assignee that is ~~required as~~ not a ~~result of any Change in Law~~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~~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 12.06(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 ~~13.06~~12.06, (x) no assignment ~~by any Lender~~ may be made to the ~~Borrower~~ Borrower, the Servicer, the Equityholder or any of ~~its Affiliates~~ their respective Affiliates, (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~~ y) and (z) unless an Event of Default has occurred and is continuing~~) shall~~ , no assignment may be ~~permitted~~made to a Disqualified Institution without the prior written consent of the Borrower. (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 (x) during an Event of Default or (y) at any time to any Person other than a Disqualified Institution (unless the Borrower has consented (such consent not to be unreasonably withheld or delayed, provided that such consent shall be deemed fifteen (15) Business Days following notice of such sale)) 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(c~~12.06(c), Section ~~13.06(d~~12.06(e), Section ~~13.06(e)~~ 12.09 and Section ~~13.17~~12.16. 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~~ 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)~~ 2.20 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 2.10~~Sections 2.09 or 12.03, ~~2.11~~with 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 occurred~~receive, 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.. -160- DOCPROPERTY "DocID" \* MERGEFORMAT USActive 60781347.5 (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 Document~~hereunder) 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) of the United States Treasury Regulations~~ 1 and proposed 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~~ Servicer, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~hereunder~~ and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of ~~this Agreement~~the Facility Documents. The Register shall be available for inspection by the ~~Borrower~~ Borrower, the Servicer, the Collateral Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each ~~Note~~Note 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 ~~13.06~~12.06, (i) any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including -161- DOCPROPERTY "DocID" \* MERGEFORMAT USActive 60781347.5 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 (ii) each Conduit Lender may at any time pledge or grant a security interest or Lien in all or any portion of its rights under this Agreement to secure any obligations of such Conduit Lender, 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 obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. (g) Nothing in this Agreement shall restrict or delay (x) a Conduit ▇▇▇▇▇▇’s ability to assign its interests hereunder to its Liquidity Bank or an Affiliate or to any other Conduit Lender in its Lender Group or to grant a security interest in its interests hereunder to a Conduit Trustee or (y) any Lender in a Lender Group from assigning its Advances to another Lender in such Lender Group. (h) Each Lender, without the consent of the Borrower, may assign to any Eligible Assignee all or a portion of its rights and obligations under this Agreement. The parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance (provided that in the event that the assignment is between Conduit Lenders or a Conduit Lender and the Committed Purchaser or the Committed Purchaser and one of its Affiliates (including a Conduit Lender), the assigning entity will be permitted to use its internal form of assignment instead of the Assignment and Acceptance attached hereto and each such assignment shall be recorded on the books and records of the relevant Lenders, without the need to execute and deliver an Assignment and Acceptance, and for all purposes of this Agreement and all related documents, the relevant Lenders shall be deemed to have the benefit of an executed, delivered, accepted and recorded Assignment and Acceptance relating to such assignment.

Appears in 1 contract

Sources: Credit and Security Agreement (SLR Investment Corp.)

Assignability. 32 See Amendment 5 to Master Repurchase Agreement, dated as of December 4, 2020. (a) ~~Each Lender may, with~~ The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by the Sellers without the prior written consent of the ~~Administrative Agent~~ Buyer. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the ~~Borrower~~benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Buyer may, upon at least five (5) Business Days’ notice to Sellers, 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; provided, however so long as an Event of Default has not occurred and is not continuing, no such Assignment and Acceptance shall be valid without the Sellers’ consent, which consent shall not be unreasonably withheld. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, the Sellers 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 the Buyer by the Sellers. (b) Buyer, upon at least five (5) Business Days’ notice to Sellers, 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~~Agreement to any Person; ~~provided~~ provided, however, that (Ai) ~~such participant is not a Disqualified Lender, (B) such Lender~~Buyer’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~~ Sellers shall continue to deal solely and directly with ~~such Lender~~ Buyer in connection with ~~such Lender~~Buyer’s rights and obligations under this Agreement and ~~(E) each Participant~~ the other Facility Documents except as provided in Section 8; provided that no such restrictions shall ~~have agreed~~ apply with respect to any sale to any Affiliate of Buyer or if an Event of Default has occurred and is continuing; and provided further that Buyer shall act as agent for all purchasers, assignees and point of contact for Sellers pursuant to agency provisions to be ~~bound~~ agreed upon by Buyer, its intended purchasers and/or assignees and Sellers. (c) Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~13.06(c)~~21, ~~Section 13.06(d)~~disclose to the assignee or participant or proposed assignee or participant, ~~Section 13.06(e) and Section 13.17. Any agreement pursuant~~ as the case may be, any information relating to ~~which a Lender sells such a participation shall provide~~ the Sellers or any of their Subsidiaries or to any aspect of the Transactions that ~~such Lender shall retain~~ has been furnished to Buyer by or on behalf of the ~~sole right to enforce this Agreement and to approve~~ Sellers or any ~~amendment, modification or waiver~~ of ~~any provision of this Agreement~~their 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 participationAgreement. (iid) 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 doubt~~Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to ~~any Person unless (A) such Person shall have represented and agreed~~ 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 Borrower~~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

Sources: Master Repurchase Agreement (Angel Oak Mortgage, Inc.)

Assignability. (a) The Borrower may not sell or assign this Agreement, or any other agreement with the Agent or the Lenders or any portion thereof; either voluntarily or by operation of law, without the prior written consent of the Agent. (b) Each Lender may, with the prior written consent of Agent, and with the prior written consent of the ~~Administrative Agent~~ Company which shall be delivered promptly and ~~the Borrower~~not unreasonably withheld, assign ~~to an assignee~~ all or ~~a portion~~ less than all of its rights and obligations under this Agreement to one or more Eligible Transferees (but not including ~~all or~~ for this purpose any assignments in the form of a ~~portion~~ participation), each of ~~its outstanding Advances or interests therein owned~~ which assignees shall become a party to this Agreement as a Lender by ~~it, together with ratable portions~~ execution of ~~its Individual Lender Maximum Funding Amount)~~an Assignment and Acceptance; provided that~~: (i) each of the Borrower’s and the Administrative Agent’s consent to any~~ , such transfer or assignment ~~(A) shall~~ will not be ~~unreasonably withheld or delayed;~~ effective until recorded by Agent on the Register (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(gdefined below). 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. (bc) 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 Agent shall maintain a register ~~on which it enters~~ of the ~~name~~ names and ~~address~~ addresses of ~~all participants in the Advances held by it~~ Lenders, their Commitments and the principal amount of ~~(and stated interest on) of the~~ their portion of the ~~Advance which is the subject of the participation~~ Loan (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,~~ also maintain a copy of ~~this Agreement and each signature page hereto and~~ each Assignment and Acceptance delivered to and accepted by it and ~~a register (~~shall modify the ~~“Register”) for the recordation of the names~~ Register to give effect to each Assignment 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)~~Acceptance. 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 shall be available for inspection by the Borrower or and any Lender at any reasonable time and from time to time upon reasonable prior notice~~. An Advance~~ . (d) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be 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 (~~party hereto 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~~ other Loan Documents and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and thereunder and the ~~Borrower~~ assigning Lender shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released 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~~its obligations under this Agreement. (e) ~~Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder,~~ By execution 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 delivery of an Assignment and Acceptance, the assignor and assignee thereunder confirm to and agree with each other and the other parties hereto 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 any of the other Loan Documents or the execution, legality, enforceability, genuineness, sufficiency or value of this Agreement or any of the other Loan Documents furnished pursuant hereto, (ii) ~~on each date on which it~~ the assigning Lender makes ~~an Advance hereunder,~~ no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of the Obligations; (iii) such assignee confirms that it is has received a ~~Qualified Purchaser~~ copy of this Agreement and ~~a QIB. Each Lender further agrees that~~ the other Loan Documents, together with such other documents and information 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 assigning Lender, Agent 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 ~~assign~~taking action under this Agreement and the other Loan Documents, ~~or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless~~ (Av) such ~~Person shall have represented~~ assignee appoints and ~~agreed in writing that it is a Qualified Purchaser~~ authorizes Agent to take such action as agent on its behalf and ~~a QIB at~~ to exercise such powers under this Agreement and the ~~time of~~ other Loan Documents as are delegated to Agent by the terms hereof and thereof, together with such ~~assignment or participation~~powers as are reasonably incidental thereto, and (Bvi) such ~~Person~~ assignee agrees that it will ~~be bound~~ perform in accordance with their terms all of the obligations which by the ~~restrictions on contained in~~ terms of this ~~Section 13.06(e)~~Agreement and the other Loan Documents are required to be performed by it as a Lender. Agent and Lenders, ~~(C) a copy of any such representations or agreements shall have been furnished~~ subject to delivery to the ~~Borrower~~ Company of a confidentiality and ~~(D) any such representations or agreements shall run~~ non-disclosure agreement executed by the receiving party in a form reasonably satisfactory to the ~~benefit~~ Company, may furnish any information concerning the Borrower in the possession of Agent or any Lender from time to time to assignees and ~~be enforceable by the Borrower~~Participants. (f) ~~Notwithstanding any other provision of this Section 13.06~~At its sole cost and expense, ~~any~~ each Lender may ~~at any time pledge~~ sell participations to one or ~~grant a security interest~~ more banks or other entities in or to all or ~~any~~ a portion of its rights ~~(including rights to payment of principal~~ and ~~interest)~~ obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the portion of the Loan owing to ~~secure~~ it without the consent of Agent or the other Lenders); provided that, (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment hereunder) and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the other Lenders and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents, ~~including~~ and (iii) the Participant shall not have any ~~pledge~~ rights under this Agreement or ~~security interest granted~~ any of the other Loan Documents (the Participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (g) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its portion of the Loan hereunder to a Federal Reserve Bank in support of borrowings made by such Lenders from such Federal Reserve Bank~~, without notice to or consent of the Borrower or the Administrative Agent~~; provided ~~that~~ 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. (h) The Borrower shall assist Agent or any Lender permitted to sell assignments or participations under this Section 14.7 in whatever manner reasonably necessary in order to enable or effect any such assignment or participation, including (but not limited to) the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the delivery of informational materials, appraisals or other documents for, and the participation of relevant management in meetings and conference calls with, potential Lenders or Participants. The Borrower shall certify the correctness, completeness and accuracy, in all material respects, of all descriptions of the Borrower and their affairs provided, prepared or reviewed by the Borrower that are contained in any selling materials and all other information provided by it and included in such materials. The Borrower shall have no liability for the costs and expenses related to any assignment or participation by a Lender other than the Agent.

Appears in 1 contract

Sources: Loan and Security Agreement (Medirect Latino Inc)

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (OFS Capital Corp)

Assignability. ~~(a) Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under~~ Neither this Agreement ~~(including all~~ nor any interest hereunder shall be assigned or ~~a portion of its outstanding Advances or interests therein owned~~ transferred by itSeller without Purchaser's written consent, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of the Borrower’s and the Administrative Agent’s~~ which consent ~~to any such assignment (A)~~ shall not be unreasonably withheld or delayed~~; (provided that a Lender~~ . Purchaser may not ~~make~~ assign this Agreement without first obtaining Seller's written consent. Any assignment in contravention of this provision shall be void. No assignment shall release the Purchaser herein named from any ~~such assignment pursuant~~ obligation or liability under this Agreement. Any permitted assignee shall be deemed to ~~this clause (i)(A) to a Disqualified Institution)~~ have made any and ~~(B) shall not be required~~ all representations and warranties made by Purchaser hereunder, as if the assignee ~~is a Permitted Assignee with respect to such assignor; and (ii)~~ were the ~~Borrower’s~~ original signatory hereto. If Purchaser requests Seller's written consent to any ~~such assignment pursuant to this Section 13.06(a~~assignment, Purchaser shall (1) ~~shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders~~ notify Seller 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 writing of the ~~Agents and the Lenders.~~ proposed assignment; (i2) ~~Any Lender may, without the consent of, but~~ provide Seller 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~~ proposed assignee; (~~and stated interest on~~3) 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 (provide Seller with financial information 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) financial statements of the proposed ~~United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error,~~ assignee; 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~~4) 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, provide Seller with a copy of the proposed assignment. Notwithstanding the foregoing, 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 by Purchaser prior to the Closing without the consent of Seller if (1) such assignment is to any entity which is a subsidiary or ~~sold~~ affiliate of Purchaser, or that controls, is controlled by or is under common control with Purchaser, or any entity, or affiliate of such entity, providing all or substantially all of the financing for the Property; (2) Seller is given written notice thereof and is provided with a copy of such assignment and a schedule of all evidence of ownership; and (3) the assignee assumes all of Purchaser's obligations hereunder. No such assignment shall operate to discharge or release the Purchaser named herein from the obligations and liabilities of Purchaser hereunder, in whole or in ~~part only by registration of such assignment or sale on~~ part. In 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 event Purchaser assigns 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~~pursuant to is Section 11.4, 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~~ assignee's name will be ~~bound by~~ substituted for the ~~restrictions on contained in this Section 13.06(e)~~name "Brookdale Living Communities, ~~(C) a copy~~ Inc." throughout the transfer documents the forms 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 which are attached hereto.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Brookdale Living Communities Inc)

Assignability. (a) No Credit Party shall have the right to assign this Agreement or any interest therein except with the prior written consent of Agent and all Lenders. (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrowers. (c) Each Lender may, with the consent of Agent, which consent shall not be unreasonably withheld, but without the ~~Administrative Agent and the Borrower~~consent of any other Lender or Credit Party, 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 it, together with ratable portions of its Individual Lender Maximum Funding Amount)~~and the Other Agreements; provided ~~that:~~ that (i) ~~each~~ in the event that Fifth Third holds less than 51% of the ~~Borrower’s and~~ outstanding Revolving Loan Commitment, the ~~Administrative Agent’s~~ consent to of Borrower Representative will be required, if no Event of Default exists, for any such assignment ~~(A) shall not be unreasonably withheld or delayed; (provided that~~ by 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 Lender, (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(g~~assignee, and (iii) no such assignment shall be for less than Five Million and No/100 Dollars ($5,000,000.00) (or, if less, all of assignor’s remaining Loans). ~~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 19.06 of this ~~Section 13.06~~Agreement 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~~; 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 Borrower~~By 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 any Credit Party or any other Obligor or the performance or observance by any Credit Party or any other Obligor of its obligations under this Agreement and the Other Agreements, (Eiii) ~~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~~ such assignee confirms that it has received a ~~Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce~~ copy of this Agreement and the Other Agreements, together with copies of the financial statements referred to ~~approve any amendment, modification or waiver of any provision~~ in Article 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~~; provided~~ , (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 ~~such agreement may provide that such Lender~~ it will ~~not, without the consent~~ perform in accordance with their terms all 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~~ obligations which by ~~assignment pursuant to clause (a)~~ the terms of this ~~Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees~~ Agreement are required to be ~~subject to the provisions of Section 13.03(g)~~ performed by it as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a ~~greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation~~Lender. (iie) ~~In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower~~ Agent 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~~ an agent of the ~~Borrower, shall maintain~~ Borrowers) at its address ~~specified~~ referred to in Section ~~13.02 or such other address as~~ 19.07 of the ~~Administrative Agent shall designate in writing to the Lenders,~~ Agreement a copy of ~~this Agreement and each signature page hereto and~~ each Assignment and Acceptance delivered to and accepted by it and a register ~~(the “Register”)~~ for the recordation of the names and addresses of ~~the~~ Lenders and the ~~aggregate outstanding~~ Revolving Loan Commitment of, and principal ~~amount of the outstanding Advances maintained by each Lender under this Agreement (~~and any stated interest ~~thereon~~amount of the Loans owing to, each Lender from time to time (collectively, the “Register”). ~~The~~ No assignment of any rights or obligations under or in respect of the Loans or the Notes evidencing such Loans shall be effective unless and until the Agent shall have recorded the assignment in the Register, and the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Credit Parties, ~~the Agents~~ Agent and ~~the~~ Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register 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.purposes

Appears in 1 contract

Sources: Loan and Security Agreement (Addus HomeCare Corp)

Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the ~~Borrower~~Borrower (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~~Commitment); 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~~16.06(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~~16.01); (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 Law~~its Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent~~Agent and the Borrower) an Assignment and Acceptance and the applicable tax forms required by Section ~~13.03(g~~16.03(g) and (j). 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 13.0616.06, 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. (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 the Borrower, sell participations to 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 Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) 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, (D) each Participant shall have agreed to be bound by this Section 16.06(c)

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)

Assignability. (a) No Loan Party shall have the right to assign this Agreement or any interest therein except with the prior written consent of Agent and all Lenders. (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an affiliate of such Lender except to the extent such transfer would result in increased costs to Borrowers. (c) Each Lender may, with the consent of Agent and, so long as no Event of Default is then continuing, Borrowers, which consent shall not be unreasonably withheld, but without the ~~Administrative Agent and the Borrower~~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 Agreement ~~(including all or a portion of its outstanding Advances or interests therein owned by it~~and the Other Agreements; provided, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:~~ that (i) for each such assignment, the parties thereto shall execute and deliver to 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) to be paid by the ~~Borrower’s~~ assignee, and ~~the Administrative Agent’s consent to any~~ (ii) no such assignment shall be for less than the lesser of (A) ~~shall not be unreasonably withheld or delayed;~~ Five Million and No/100 Dollars (~~provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution~~$5,000,000) and (B) ~~shall not be required if~~ the ~~assignee is a Permitted Assignee with respect~~ total amount of such Lender’s Revolving Loan Commitment and Revolving Loans as of the date of such assignment. Upon such execution and delivery of the Assignment and Acceptance to ~~such assignor; and (ii)~~ Agent, from and after the ~~Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if~~ date specified as the effective date in the Assignment and Acceptance, (x) ~~an Event of Default~~ 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 ~~occurred (~~the rights and ~~not been waived by the Lenders in accordance with Section 13.01) or~~ obligations of a Lender hereunder and (y) ~~such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver~~ the assignor thereunder shall, to the ~~Administrative Agent~~ extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (~~with a copy~~ other than any rights it may have pursuant to Section 23 of this Agreement which will survive) and be released from its obligations under this Agreement (and, in the ~~Collateral Agent)~~ 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, 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 Loan Parties or any other Obligor or the performance or observance by any Loan Party 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 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 Loan Parties, 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 Loan Parties, 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 Loan Parties. 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, (B~~i) 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~~Loan Parties, ~~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~~ . Each Lender ~~will not~~agrees that, without the prior written consent of ~~the Participant~~Loan Parties 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 Register~~jurisdiction. (dh) ~~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 Note~~assign 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 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 heretopossession regarding Loan Parties.

Appears in 1 contract

Sources: Loan and Security Agreement (Coachmen Industries 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. (b) Notwithstanding subsection (c) of this Section 14.5, 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 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 is in existence, 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) 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: (i) each of the Borrower’s~~ Revolving Loans 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 Revolving Credit Commitments, (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, (iii) 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 to make Swing Loans) or, with respect to Term Loans, the entire amount of Term Loans owed to such Lender (or the entire remaining Term Loan Commitments of such Lender if prior to the ~~Collateral~~ Funding Date), and (iv) 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 be subject to the minimum assignment amounts specified herein. Upon such execution and delivery of the Assignment and Acceptance 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 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 14.7 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 rights and obligations under this Credit 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 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 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 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 Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and (if applicable) the Revolving Credit 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 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 Acceptance 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 Acceptance executed by an assigning Lender, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (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 order of the assignee in an amount equal to the Revolving Credit Commitment (and commitment to make Swing Loans, if applicable) assumed by it and Term Loans assigned to it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or Term Loans owing to it hereunder and if requested by it, a new Note or Notes to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment or amount of Term Loans 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 (as to any Person, other than a fund, that would be an Eligible Assignee for an assignment) any other Lender, to one or more parties 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, (B~~i) 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 and (Ev) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall ~~retain~~ not transfer, grant, assign or sell any participation under which the ~~sole right to enforce this Agreement and~~ participant shall have rights to approve any ~~amendment, modification~~ amendment or waiver of ~~any provision of~~ this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, Credit Agreement except to the extent such ~~entitlement~~ amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to ~~receive a greater amount results from a Change~~ the Loans or Letter of Credit reimbursement obligations in ~~Law that occurs after the Participant acquired the applicable participation~~which such participant is participating, or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder. (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 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 commitment~~Loan, ~~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 Register~~jurisdiction. (di) ~~The Administrative Agent~~In 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 Borrower, shall maintain at~~ such Lender may disclose any information in 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 possession regarding 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 BorrowerSubsidiaries. (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~~ 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 delayed~~present 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 ~~Borrower~~Company’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(a~~Agreement 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 may~~Company, ~~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 as 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 Borrower~~effect, shall ~~maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy~~ be an event of default under this Agreement and ~~each signature page hereto and each Assignment and Acceptance delivered~~ shall give the Company the right to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of terminate this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 1 contract

Sources: Licensing Agreement (Fashion House Holdings Inc)

Assignability. (a) This Agreement and the Lenders' rights and obligations herein (including ownership of each Advance made by it) shall be assignable in whole or in part by the Lenders and their successors and assigns to Eligible Assignees. Each ~~Lender~~ such assignor may, in connection with any such assignment, disclose to the ~~consent of the Administrative Agent and~~ assignee or potential assignee any information relating to the Borrower, the Servicer, SPE I, HL Funding I, LLC, HL Funding II, Inc., the Parent or any Originator, including the Collateral furnished to such assignor by or on behalf of the Borrower, HL RECEIVABLES FINANCING AGREEMENT the Parent, SPE I, HL Funding I, LLC, HL Funding II, Inc., Servicer, any Originator or by the Program Agent; provided that, prior to any such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 10.06 hereof. (b) Each Lender may assign pursuant to ~~an assignee~~ Section 10.03(a) above to any Eligible Assignee all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~outstanding~~ Commitment and any Advances ~~or interests therein owned~~ made by it~~, together with ratable portions of its Individual Lender Maximum Funding Amount~~); ~~provided~~ provided, however, that: (i) each ~~of the Borrower’s and the Administrative Agent’s consent to any~~ such assignment ~~(A)~~ shall be of a constant, and not ~~be unreasonably withheld or delayed; (provided that~~ a ~~Lender may not make any such assignment pursuant to~~ varying, percentage of all rights and obligations under this ~~clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and~~Agreement, (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(a~~such 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 Lender's Commitment, and (iii) the parties to each such assignment shall execute and deliver to the ~~Administrative Agent (~~Program Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a ~~copy~~ 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, (x) the assignee thereunder shall be a party to this Agreement and, to the ~~Collateral Agent~~extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the assigning Lender 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~~ 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 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(c~~a 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,~~ 10.02 of this Agreement a copy of ~~this Agreement and each signature page hereto and~~ each Assignment and Acceptance delivered to and accepted by it and a register ~~(the “Register”)~~ for the recordation of the names and addresses of the Lenders and the Commitment of, and aggregate outstanding ~~principal amount~~ Principal of ~~the outstanding~~ Advances ~~maintained by~~ or interests therein owned by, each Lender ~~under this Agreement~~ from time to time (~~and any stated interest thereon~~the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the ~~Agents and~~ Originators, the Program Agent, the Lenders ~~shall~~ may treat each ~~Person~~ person whose name is recorded in the Register as a Lender ~~hereunder~~ under this Agreement 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 (~~Upon its receipt of an Assignment and ~~a Note~~Acceptance executed by an assigning Lender and an Eligible Assignee, the Program Agent shall, if ~~any, evidencing the same) may be assigned or sold in whole or in part only by registration of~~ such ~~assignment or sale on the Register (~~Assignment and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the BorrowerAcceptance has been completed, (i) ~~on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an~~ accept such Assignment and Acceptance~~) and~~ , (ii) ~~on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser~~ record the information contained therein in the Register and ~~a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless~~ (Aiii) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished give prompt notice thereof to the ~~Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the~~ Borrower.. HL RECEIVABLES FINANCING AGREEMENT (fd) Notwithstanding any other provision of this Section ~~13.06~~9.03, 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~~ Principal and ~~interest~~Yield) under this Agreement 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. (e) Neither the Borrower, the Parent, SPE I, HL Funding I, LLC, HL Funding II, Inc., any Originator or the Servicer may assign its rights or obligations hereunder or any other Transaction Document or any interest herein or therein without the prior written consent of the Program Agent and the Required Lenders. (f) 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 Advances); 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 Servicer, the Program Agent, and the 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 Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Principal or Yield that is payable on account of any Advance or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Borrower to the Program Agent or such Lender (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 the Lenders' source of funds may derive in part from its Participants. Accordingly, references in Sections 2.06, 2.07, 2.08, 6.07 and 10.04 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 the Lenders shall be deemed also to include those of its Participants; provided that the Borrower shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Borrower in the absence of the sale of any participation by any Lender to a Participant as contemplated by this Section 10.03(h). The Lenders and the Program Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Borrower, the Servicer, SPE I, HL Funding I, LLC, HL Funding II, Inc., the Parent or the Originators, including the Collateral, furnished to the Lenders or the Program Agent by or on behalf of the Borrower, Parent, Servicer or any Originator; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 10.06 hereof. HL RECEIVABLES FINANCING AGREEMENT

Appears in 1 contract

Sources: Receivables Financing Agreement (Hayes Lemmerz International 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 (other than with respect to a Competitor) not to be unreasonably withheld, conditioned or delayed) and the ~~Borrower~~Administrative 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 Amount~~Commitment); 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; and~~Lender 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(a~~12.06(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 13.01~~a), 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~~ ▇▇▇▇▇▇ 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(g~~12.06(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 ~~13.06~~12.06, (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 permitted~~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. (ic) 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(c~~12.06(c), Section ~~13.06(d~~12.06(e), Section ~~13.06(e)~~ 12.09 and Section ~~13.17~~12.16. 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 2.10~~Sections 2.09 or 12.03, ~~2.11~~with 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 occurred~~receive, 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 (LGAM Private Credit LLC)

Appears in 1 contract

Sources: Credit and Security Agreement (Saratoga Investment 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~~ 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 Amount~~Commitment); 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 assignor~~Lender 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(a~~12.06(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~~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 ~~Section 13.03(g~~Sections 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 ~~13.06~~12.06, (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 permitted~~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(c~~12.06(c), Section ~~13.06(d~~12.06(e), Section ~~13.06(e)~~ 12.09 and Section ~~13.17~~12.16. 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(g~~Sections 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 Regulations~~Borrower, 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 ~~13.06~~12.06, 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 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;~~ delayed (~~provided~~ provided, that ~~a Lender may~~ it shall not ~~make any such~~ be unreasonable for the Borrower to withhold its consent to an assignment ~~pursuant to this clause (i)(A)~~ if to a ~~Disqualified Institution~~Competitor or if after giving effect to an assignment, the portion of the Individual Lender Maximum Funding Amounts held by the Administrative Agent and its Affiliates would be less than 51% of the Facility Amount) and (B) shall not be required if the assignee is a Permitted Assignee (unless such Permitted Assignee is a Competitor and no Event of Default has occurred and is continuing) 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 shall have occurred and be continuing, or (y) such assignment is required by any Change in Law or (z) 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) 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~~each Lender. (i) Any Lender may, ~~without~~ with the consent ~~of, but with notice to,~~ of the ~~Borrower~~Borrower (not to be reasonably withheld), 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 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) and proposed Section 1.163-5(b) 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 (and stated interest) 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~~FRB, 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 (Blue Owl Credit Income 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 Borrower~~Buyer, 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 ~~Borrower~~parties 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 13.06~~the 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 may~~expense 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 Lender~~Seller’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(e~~3(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(g~~29 (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 ~~2.10~~3(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 occurred~~assigned 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 participation~~Transaction 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 on~~for 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 ~~Participant~~participant’s interest in any ~~commitments, loans~~ rights or ~~its other~~ obligations under ~~any Facility Document~~this 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 Document~~foregoing, 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 13.06~~than the parties to the Transaction Documents and their respective successors and permitted assigns, any ~~Lender may at any time pledge or grant a security interest in all~~ benefit or any ~~portion of its rights (including rights to payment of principal and interest)~~ legal or equitable right, power, remedy or claim under ~~this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of~~ the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party heretoTransaction Documents.

Appears in 1 contract

Sources: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)

Assignability. ~~(a) Each Lender may, with~~ The 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 ~~Borrower~~party, ~~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 ~~Lenders~~case 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 may~~In the case of USGC, ~~without the consent of~~provided 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 contrary~~making such an assignment. ~~For the avoidance of doubt~~Following 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 Agent~~writing 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 Borrower~~Tonkin 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 ~~Borrower~~occurrence 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(c~~a 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 thereon~~the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Borrowers, 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 interest~~of 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 ~~Lender~~participant 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 Bank~~Fees 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 hereto~~possession regarding the Borrowers.

Appears in 1 contract

Sources: Credit Agreement (Penske Motorsports Inc)

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; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Program Agent within five (5) Business Days after having received notice thereof. 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 Borrower~~which 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 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 Law~~existing 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 the foregoing, each Secondary 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 13.06~~Agreement to any Federal Reserve Bank without notice to or consent of the Borrower. (c) 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 ~~permitted~~required if the assignee is a U.S. Affiliate of the Program 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 Lenders~~Program Agent. (ie) ~~Any Lender may~~The Borrower acknowledges and agrees that each Lender's (other than a Conduit Lender), ~~without the consent of~~each Secondary Lender's source of funds may derive in part from its participants. Accordingly, ~~but with notice to~~references in Sections, ~~the Borrower~~2.06, ~~sell participations to Participants in all or a portion of such Lender’s rights~~ 2.07, 2.08, 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 and limitations set forth in Section 13.03~~Lender, ~~including~~ the ~~requirements under Section 13.03(g))~~Secondary Lenders shall be deemed also to include those of each of its 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 2.10~~any 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~~ its related 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 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 (Invesco Prime Income Trust)

Assignability. ~~(a) Each Lender may, with~~ The rights and obligations of the parties under this Repurchase Agreement and under any Transaction shall not be assigned by the Seller without the prior written consent of Buyer. Subject to the ~~Administrative Agent~~ foregoing, this Repurchase Agreement and any Transactions shall be binding upon and shall inure to the ~~Borrower~~benefit of the parties and their respective successors and assigns. Nothing in this Repurchase Agreement express or implied, shall give to any Person, other than the parties to this Repurchase Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Repurchase Agreement. Buyer may from time to time assign ~~to an assignee~~ all or a portion of its rights and obligations under this Repurchase Agreement and the Facility Documents; pursuant to an executed assignment and acceptance by Buyer and assignee (~~including~~ "Assignment and Acceptance"), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, the Seller shall continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller. The Buyer may sell participations to one or more Persons in or to all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Repurchase Agreement; ~~provided~~ provided, however, that (Ai) ~~such participant is not a Disqualified Lender, (B) such Lender’s~~ the Buyer's obligations under this Repurchase Agreement shall remain unchanged, (Cii) ~~such Lender~~ the Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) ~~such Borrower,~~ the ~~Agents and the other Lenders~~ Seller shall continue to deal solely and directly with ~~such Lender~~ the Buyer in connection with ~~such Lender’s~~ the Buyer's rights and obligations under this Repurchase Agreement and ~~(E) each Participant shall have agreed~~ the other Facility Documents except as provided in Section 7. The Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to ~~be bound by~~ this Section ~~13.06(c)~~18, ~~Section 13.06(d)~~disclose to the assignee or participant or proposed assignee or participant, ~~Section 13.06(e) and Section 13.17. Any agreement pursuant~~ as the case may be, any information relating to ~~which a Lender sells such a participation shall provide~~ the Seller or any of its Subsidiaries or to any aspect of the Transactions that ~~such Lender shall retain~~ has been furnished to the ~~sole right to enforce this Agreement and to approve~~ Buyer by or on behalf of the Seller or any ~~amendment, modification or waiver~~ of ~~any provision of this Agreement~~its Subsidiaries; provided that such ~~agreement may provide that~~ assignee or participant agrees to hold such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (information subject to the ~~requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the~~ confidentiality provisions of ~~Section 13.03(g) as if it were an assignee under clause (a) of~~ this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) Repurchase Agreement. In the event ~~that any Lender sells participations in any~~ the Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this ~~Agreement notwithstanding any notice to the contrary. For the avoidance of doubt~~Repurchase Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Repurchase Agreement to ~~secure obligations of such Lender, including any pledge or security interest granted~~ add agency provisions similar to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee those included in repurchase agreements for ~~such Lender as a party hereto~~similar syndicated repurchase facilities.

Appears in 1 contract

Sources: Master Repurchase Agreement (Anthracite Capital Inc)

Assignability. Lender shall have the right, in its sole discretion, to assign, sell or transfer its interest in the Loans and any Collateral provided hereunder (aa “Lender Assignment”), whether by operation of law or otherwise; provided that if such Lender Assignment occurs prior to the one (1) ~~Each~~ year anniversary of the Effective Date, such Lender ~~may, with~~ Assignment shall require the prior 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~~ unless an Event of Default has occurred and is continuing. A Lender Assignment after the one (1) year anniversary of the Effective Date, shall not require the Borrower’s consent. In such event, all references in the Loan Documents to Lender shall be ~~permitted.~~ deemed to refer to such permitted assignee or successor in interest and such assignee or successor in interest shall thereafter stand in the place of Lender. Borrower shall accord full recognition to any such assignment, and all rights and remedies of Lender in connection with the interest so assigned shall be as fully enforceable by such permitted assignee as they were by ▇▇▇▇▇▇ before such assignment. In connection with any such assignment, ▇▇▇▇▇▇ shall be entitled to disclose to the proposed permitted assignee any information that ▇▇▇▇▇▇▇▇ has delivered to Lender, provided such assignee executes a confidentiality agreement with Borrower in form and substance reasonably satisfactory the Parent Guarantor (b) any such approval not to be unreasonably withheld, conditioned or delayed). Upon such assignment, ▇▇▇▇▇▇ thereafter shall be relieved from all liability with respect to such Collateral. In addition, Lender may at any time sell one or more participations in the Loans, provided that to the extent the Lender proposes to share any confidential information of the Borrower, each such participant executes a confidentiality agreement with Borrower in form and substance reasonably satisfactory the Parent Guarantor (any such approval not to be unreasonably withheld, conditioned or delayed). Borrower may not assign its ~~rights or obligations hereunder~~ interest in this Agreement, or any ~~interest herein~~ other agreement with Lender or any portion thereof, either voluntarily or by operation of law, 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 ▇▇▇▇▇▇ ▇’s sole discretion, except 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”); otherwise 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 Registerherein. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 1 contract

Sources: Loan Agreement (Veea 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~~Commitment); provided that: (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (Ax) shall not be unreasonably withheld or ~~delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution)~~ delayed and (By) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~13.06(a~~16.06(a) shall not be required if ~~(x)~~ an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section ~~13.01) or (y) such assignment is required as a result of any Change in Law~~16.01). 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(g~~16.03(g). Notwithstanding any other provision of this Section ~~13.06~~16.06, (A) no assignment by any Lender to the ~~Borrower~~ Borrower, the Parent, the Collateral Manager or any of ~~its~~ their respective Affiliates ~~or any Disqualified Institution (except if an Event of Default has occurred and is continuing)~~ shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 permitted and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. (a) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such ▇▇▇▇▇▇’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 16.06(c), Section 16.06(d), Section 16.06(e) and Section 16.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.17 with respect to any Participant. Sections 2.09, 2.10, and 16.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section (subject to the requirements and limitations set forth in Section 16.03, including the requirements under Section 16.03(g)); provided that (1) such Participant agrees to be subject to the provisions of Section 16.06 as if it were an assignee under clause (a) of this Section 16.06 and (2) no Participant shall be entitled to any amount under Section 2.09, 2.10, or 16.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Main Street Capital CORP)

Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the ~~Borrower~~Borrower (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~~Commitment); 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~~15.06(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~~15.01); and (iii) ~~or (y)~~ no such assignment ~~is required as~~ shall be made to a ~~result of any Change in Law~~natural 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(g~~15.03(g). Notwithstanding any other provision of this Section ~~13.06~~15.06, ~~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 permitted~~such 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 ‑166‑ FILENAME 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~~15.06(c) and Sections 15.09(b), ~~Section 13.06(d), Section 13.06(e)~~ 15.15 and ~~Section 13.17~~15.19. 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 ~~Participant~~participant’s interest in any ~~commitments~~Commitments, ~~loans~~ Advances or its other obligations under ~~any Facility Document~~this 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 ~~commitment~~Commitment, ~~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 Regulations~~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 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 FILENAME 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 hereto~~the Borrower’s Affiliates.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)

Assignability. ~~(a) Each Lender may~~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. Buyer may from time to time, ~~with~~ without the consent of ~~the Administrative Agent and the Borrower~~Seller, 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. 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 Lender~~Buyer’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 Lender~~Buyer’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 ~~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 Agreement~~its 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 doubt~~Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to ~~any Person unless (A) such Person shall have represented and agreed~~ 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 Borrower~~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

Sources: Master Repurchase Agreement (loanDepot, Inc.)

Assignability. (a) Each Lender may, with the consent of the Administrative Agent and the ~~Borrower~~Borrower (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~~Commitment); 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~~15.06(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~~15.01); and (iii) ~~or (y)~~ no such assignment ~~is required as~~ shall be made to a ~~result of any Change in Law~~natural 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(g~~15.03(g). Notwithstanding any other provision of this Section ~~13.06~~15.06, ~~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 permitted~~such 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~~ Agreement, and (ED) each Participant shall have agreed to be bound by this Section ~~13.06(c~~15.06(c) and Sections 15.09(b), ~~Section 13.06(d), Section 13.06(e)~~ 15.15 and ~~Section 13.17~~15.19. 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 ~~Participant~~participant’s interest in any ~~commitments~~Commitments, ~~loans~~ Loans or its other obligations under ~~any Facility Document~~this 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 ~~commitment~~Commitment, ~~loan~~ Loan 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 Internal Revenue Service, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and ~~Section 1.163-5(b)~~ solely to the Internal Revenue Service. An Advance may be participated in whole or in part only by registration of such participation on the ~~proposed United States Treasury Regulations~~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 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 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 (PennantPark Floating Rate Capital Ltd.)

Assignability. (a) ~~Each Lender may~~Paragraph 15(a) of the Agreement is hereby amended (i) by inserting the following words after the first occurrence of the word “without” in the first sentence thereof: “(A) if the proposed transferee does not qualify as a “financial institution” within the meaning of Bankruptcy Code § 101(22A) or any successor provision, each Rating Agency then issuing a rating with respect to the Agreement having confirmed in writing that such assignment will not result in a reduction or withdrawal of its rating of the Agreement, and (B)”, (ii) by inserting the following words after the first occurrence of the words “other party,” in the first sentence thereof: “such prior written consent not to be unreasonably withheld (it being understood that the Seller may withhold its consent if the proposed transferee would be required to withhold amounts on account of any Taxes from any payments that it is required to make to Seller pursuant to paragraph 11(a) of Annex I hereto in excess of such amounts that Buyer would be required to withhold at the time the assignment or transfer would occur),” and (iii) by inserting the following words at the end of the first sentence thereof: “, provided that the transfer of any rights or obligations of a party under the Agreement and any Transaction to any affiliate of Lloyds TSB Bank plc, which affiliate at the time of the assignment or transfer would not be required to withhold amounts on account of any withholding tax or other taxes from any payments that it is required to make to Seller pursuant to paragraph 11(a) of Annex I hereto, does not require the prior consent of the ~~Administrative Agent~~ other party and, provided, further, if any assignment, syndication, or other transfer results in Seller or Guarantor being obligated to withhold amounts in respect of U.S. withholding tax from any payment to any transferee of Buyer (after taking into account any tax forms or certifications provided to Seller or Guarantor by such transferee), then Seller shall have no obligation to gross-up or otherwise compensate such transferee in respect of such U.S. withholding tax, and provided, further, that the ~~Borrower~~transferee shall make any payments it is required to make to the Seller pursuant to paragraph 11(a) of Annex I hereto free and clear and without deduction on account of any withholding tax or other taxes; provided, ~~assign~~ however, that in the event Buyer has obtained and furnished to Seller an ~~assignee all~~ opinion of nationally recognized tax counsel in the relevant jurisdiction to the effect that as a result of a change in law occurring after the date on which the transfer or ~~a portion~~ assignment to such transferee occurred, such transferee is required to deduct amounts on account of withholding tax or other taxes from such payments, the expense of which opinion being shared equally by Buyer and Seller, then such transferee may deduct and pay to the relevant governmental authority any such taxes (without any obligation to pay any additional amounts in respect thereof).” (b) Buyer agrees that, subject to Paragraph 15(a) of the Agreement as amended herein, any transfer of its rights and obligations under ~~this~~ the Agreement shall be effected by novation pursuant to and in accordance with the terms of a novation agreement substantially in the form of Schedule A hereto (~~including~~ a “Novation Agreement”), which contemplates the transfer of all or a portion of ~~its outstanding Advances or interests therein owned by it~~Buyer’s rights and interest in the Guaranty, ~~together with ratable portions~~ the Agreement and a corresponding number 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 Purchased Securities. Any transfer 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~~ subparagraph (~~except if an Event of Default has occurred and is continuing~~b) shall be ~~permitted~~null and void. (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 1 contract

Sources: Master Repurchase Agreement (Agilent Technologies Inc)

Assignability. ~~(a) Each Lender may~~This Agreement shall be assignable, ~~with~~ in whole or in part, by Buyer to any direct or indirect subsidiary of Buyer although no such assignment shall relieve Buyer of any liabilities or obligations under this Agreement. As contemplated by Section 1.11 hereof, in the event an assignment of certain of Buyer’s rights hereunder is reasonably necessary in order to receive the consent of any Governmental Authority to the ~~Administrative Agent~~ transactions contemplated hereby in a jurisdiction listed on Schedule 7.2 hereto, the Buyer may so assign as and to the extent reasonably necessary to receive such consent and the ~~Borrower, assign~~ parties hereto shall use commercially reasonable efforts to ~~an assignee all or a portion of its rights and obligations under~~ effect such assignment. Neither this Agreement ~~(including all~~ nor any right or ~~a portion of its outstanding Advances~~ obligation hereunder may be assigned 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 delegated 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 Seller Entities without the prior written consent of Buyer in its sole discretion; provided, however, that the ~~Agents~~ Seller Entities may freely assign or pledge their rights to payment hereunder to an Affiliate of the Seller Entities if (1) any such assignment, pledge, or issuance of Common Stock, complies in with all applicable Laws, including all applicable foreign, federal and ~~the Lenders.~~ state securities Laws; (i2) ~~Any Lender may~~any such assignment, pledge or issuance of Common Stock, can be made without ~~the consent of~~registration under applicable foreign, ~~but~~ federal or state securities laws; (3) any such assignment, pledge or issuance of Common Stock, does not require any filing 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 any Governmental Agency pursuant to the ~~other parties hereto for the performance of such obligations,~~ HSR Act; (D4) 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 upon any such ~~Sections~~ assignment, pledge 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 issuance of ~~its rights and obligations hereunder~~Common Stock, 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 party becomes a party to the Investor Rights Agreement; and (5) such party becomes a party hereto by execution of a Joinder Agreement in the form attached hereto to the extent of the consideration so assigned, pledged or issued to such party. This Agreement and the obligations of the parties hereunder shall be binding upon and enforceable by, and shall inure to the benefit of, the parties hereto and their respective successors, executors, administrators, estates, heirs and permitted assigns, and no others. Notwithstanding anything herein to the contrary, Buyer, without the prior consent of the Seller Entities, may assign this Agreement ~~(whether by being a signatory hereto or by entering into an Assignment~~ and ~~Acceptance)~~ its rights and ~~(ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser~~ benefits hereunder and ~~a QIB. Each Lender further agrees that it shall not assign, or grant any participations in,~~ may delegate its duties hereunder to lenders providing financing to the Buyer and/or 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 BorrowerAffiliates. (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: Second Territory Letter Agreement (Inverness Medical Innovations Inc)

Assignability. ~~(a) Each Lender may~~This Agreement is binding upon, ~~with~~ and will inure to the ~~consent~~ benefit of, The Regents, its successors and assigns. Neither this Agreement, nor any of the ~~Administrative Agent and the Borrower, assign to an assignee all~~ rights or ~~a portion of its rights and~~ obligations under this ~~Agreement~~ Agreement, may be assigned, transferred or delegated (~~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~~ action described herein as an “Assignment”), in whole 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 in part, by operation of ~~Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01)~~ law 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 13.06otherwise, 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 Regents (and any purported Assignment shall be null and void) except if: A. such Assignment is in conjunction with a bona fide arms’ length transaction to the ~~Agents~~ successor in interest of the Licensee by way of merger, acquisition, sale of stock or sale of all or substantially all of the Licensee’s business or assets to which this Agreement relates; or (1) the proposed assignment complies with U.S. law; (2) neither the proposed assignee, any entity or individual who owns or controls [*] or more of the proposed assignee, or any executive officer of the proposed assignee is on any restricted party list maintained by the U.S. government (such as the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons list, the Bureau of Industry and Security’s Denied Parties List, the Entry List and the ~~Lenders.~~ Office of Defense Trade Controls’ Debarred Persons Lists); (3) neither the proposed assignee nor any executive of the proposed assignee has been convicted of any crime in the four years immediately preceding the assignment and the proposed assignee confirms, in writing, that it is not aware of any pending investigation of any crime committed by the proposed assignee or any of its executive officers; and (4) the proposed assignee confirms, in writing, that (i) ~~Any Lender may~~all of The Regents’ rights under the Agreement (e.g., ~~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~~audit) 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~~Assignment, 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~~all obligations, terms, conditions and restrictions that ~~it is a Qualified Purchaser~~ apply to Licensee under the Agreement shall apply to the proposed assignee with the same force and ~~a QIB~~effect. ~~Each Lender further agrees that it shall not assign~~An Assignment made pursuant to this Section 16Bc shall, 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 within [*] of such ~~assignment or participation~~Assignment, be accompanied by (Bi) ~~such Person agrees~~ a written representation from the Licensee and proposed assignee to The Regents that ~~it will be bound by~~ these conditions have been met, and (ii) payment to The Regents of all royalties and other amounts due from Licensee as of the ~~restrictions on contained in~~ date of the Assignment. Licensee shall at all times remain liable to The Regents (jointly and severally with the proposed assignee) for the full and complete performance of Licensee’s obligations that arose under the Agreement prior to an Assignment made pursuant to 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.16B.

Appears in 1 contract

Sources: Exclusive License Agreement (Lyell Immunopharma, Inc.)

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 of~~such 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 Register~~run with the Licensed Patents and/or Unlicensed Patents and shall be binding on any successors-in-interest or assigns thereof. ~~(d) The Administrative Agent~~6.2 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 “~~Register~~Separated 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 Note~~foregoing, 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 ~~Borrower~~future 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~~ ▇▇▇▇ “[***],” 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 hereto~~amended.

Appears in 1 contract

Sources: Confidential Settlement and License Agreement

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 ~~Borrower~~Lender Group of which it is a member, assign ~~to an assignee~~ at any time all or a any portion of its rights and obligations ~~under this Agreement~~ hereunder and interests herein to any Person; provided, however, that the consent of the Borrower shall not be required in connection with any assignment by a Committed Lender (~~including all~~ i) if an Event of Termination has occurred and is continuing or ~~a portion of its outstanding Advances or interests therein owned by it~~(ii) to any other Lender. (c) With respect to any assignment hereunder, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:~~ (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement; (ii) the ~~Borrower’s and the Administrative Agent’s consent~~ amount being assigned pursuant to ~~any~~ each such assignment (~~A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution)~~ determined as of the date of the Assignment and ~~(B) shall not be required if the assignee is a Permitted Assignee~~ Acceptance with respect to such ~~assignor; and~~ assignment) shall in no event be less than $10,000,000, and (iiiii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative ~~Agent~~ Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with a ~~copy~~ processing and recordation fee of $2,500. Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the ~~Collateral Agent~~extent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (d) At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The Aggregate Principal Balance and any interests therein, and any Assignments and Acceptances of the Aggregate Principal Balance or any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the ~~applicable tax forms required by Section 13.03(g)~~Register shall serve as a record of ownership that identifies the owner of the Aggregate Principal Balances and any interest therein. Notwithstanding any other provision of this ~~Section 13.06~~Agreement, no ~~assignment by any Lender to~~ transfer of the ~~Borrower~~ Aggregate Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Servicer, the Administrative Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of ~~its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing~~this Agreement. This Section 10.03(d) shall be ~~permitted~~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 Administrative Agent will act as an agent of the Borrower. The Register shall be available for inspection by the Borrower, the Servicer or any Managing Agent at any reasonable time and from time to time upon reasonable prior notice. (be) ~~Borrower may not assign~~ Upon its ~~rights or obligations hereunder or any interest herein without~~ receipt of an Assignment and Acceptance, the ~~prior written consent of~~ Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the ~~Agents~~ information contained therein in the Register and (iii) give prompt notice thereof to the ~~Lenders~~Borrower. (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 Agreement~~hereunder (including the outstanding Loan); provided that ~~(A) such participant is not~~ following the sale of a ~~Disqualified Lender, (B) such Lender’s obligations~~ participation under this Agreement (i) the obligations of such Lender shall remain unchanged, (Cii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Diii) ~~such~~ the Borrower, the ~~Agents~~ Administrative Agent, the Servicer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and (E) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17~~Agreement. 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 ~~Agreement~~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 ~~Fundamental Amendment. Sections 2.10~~amendment, 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 modification or waiver that (Ai) 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 reduces the amount ~~the related Lender would have been entitled to under~~ of principal or Interest that is payable on account of any ~~such Sections~~ Loan 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. delays any scheduled date for payment thereof or (ii) ~~In the event that~~ reduces any ~~Lender sells participations in any portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for~~ fees payable by 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~~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, ~~a copy~~ references in Sections 2.11 or 2.13 and the other terms and 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 Amounts~~under 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 Administrative 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 13.06~~Agreement 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 ~~interest~~Interest with respect thereto) ~~under this Agreement~~ hereunder to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; ~~provided~~ provided, that no such pledge or grant of a security interest shall release ~~such~~ a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 1 contract

Sources: Loan and Servicing Agreement (Newell Rubbermaid Inc)

Assignability. ~~(a) Each Lender may, with~~ The rights and obligations of the parties under this Repurchase Agreement and under any Transaction shall not be assigned by Sellers or Guarantor without the prior written consent of Buyer. Subject to the ~~Administrative Agent~~ foregoing, this Repurchase Agreement and any Transactions will be binding upon and will inure to the ~~Borrower~~benefit of the parties and their respective successors and assigns. Nothing in this Repurchase Agreement express or implied, gives to any Person, other than the parties to this Repurchase Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Repurchase Agreement. Buyer may from time to time assign ~~to an assignee~~ all or a portion of its rights and obligations under this Repurchase Agreement and the other Facility Documents; pursuant to an executed assignment and acceptance by Buyer and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee is a party hereto and to each of the other Facility Documents to the extent of the percentage or portion set forth in the Assignment and Acceptance, and will succeed to the applicable rights and obligations of Buyer hereunder (including the rights and obligations under Section 7 (including the provision of tax forms), and (b) Buyer will, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the other Facility Documents. Sellers shall continue to take directions solely from Buyer. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Sellers, as long as such prospective assignee is bound by a nondisclosure agreement. 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~~Repurchase Agreement and the other Facility Documents; ~~provided~~ provided, however, that (Ai) Buyer may sell no more than three (3) such ~~participant is not a Disqualified Lender,~~ participations without Sellers’ written consent; (Bii) ~~such Lender~~Buyer’s obligations under this Repurchase Agreement ~~shall~~ will remain unchanged, (Ciii) ~~such Lender shall~~ Buyer will remain solely responsible to ~~the other parties hereto~~ Sellers and Guarantor for the performance of such obligations, ; and (Div) ~~such Borrower, the Agents~~ Sellers and ~~the other Lenders~~ Guarantor shall continue to deal solely and directly with ~~such Lender~~ Buyer in connection with ~~such Lender~~Buyer’s rights and obligations under this Repurchase Agreement and ~~(E) each Participant shall have agreed~~ the other Facility Documents except as provided in Section 7. Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to ~~be bound by~~ this Section ~~13.06(c)~~18, ~~Section 13.06(d)~~disclose to the assignee or participant or proposed assignee or participant, ~~Section 13.06(e) and Section 13.17. Any agreement pursuant~~ as the case may be, any information relating to ~~which a Lender sells such a participation shall provide~~ any Seller, Guarantor 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 any amendment, modification~~ Buyer by or ~~waiver~~ on behalf of any ~~provision~~ Seller, Guarantor or any of ~~this Agreement~~its Subsidiaries; provided that such ~~agreement may provide that~~ assignee or participant agrees to hold such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (information subject to the ~~requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the~~ confidentiality provisions of ~~Section 13.03(g) as if it were an assignee under clause (a) of~~ this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) Repurchase Agreement. In the event ~~that any Lender sells participations in any~~ 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 doubt~~Repurchase Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Repurchase Agreement to ~~secure obligations of such Lender, including any pledge or security interest granted~~ add agency provisions similar to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee those included in repurchase agreements for ~~such Lender as a party hereto~~similar syndicated repurchase facilities.

Appears in 1 contract

Sources: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)

Assignability. (a) ~~Each Lender may~~This Agreement and the Purchasers’ rights and obligations herein (including ownership of the Purchased Interest or an interest therein) shall be assignable, in whole or in part, by the Purchasers and their successors and assigns to another financial institution, with the prior consent of the ~~Administrative~~ Agent, which consent shall not unreasonably be withheld. Each such assignment shall be evidenced by an Assignment and Acceptance in the form of that attached hereto as Annex E (an “Assignment and Acceptance”), executed by the assignee and assignor, and shall become effective (i) upon payment by the Purchaser to the Agent of an assignment fee of $3500 (payment of which may be waived by the Agent in its sole discretion) and (ii) written acceptance by the Agent of such Assignment and Acceptance. Each assignor may, in connection with the assignment, disclose to the applicable assignee (that shall have agreed to be bound by Section 6.5) any information relating to the Servicer, the Seller or the Pool Receivables furnished to such assignor by or on behalf of the Servicer, the Seller, the Purchasers or the Agent. (b) The Purchasers may at any time grant to one or more banks or other institutions participating interests in the Purchased Interest, with the prior consent of the Agent, which consent shall not unreasonably be withheld. In the event of any such grant by the Purchasers of a participating interest to another financial institution, the assigning Purchaser shall remain responsible for the performance of its obligations hereunder. The Seller agrees that each participant shall be entitled to the benefits of Sections 1.7 and 1.8; provided, that if any such participant shall make a claim under such provisions in excess of that otherwise payable to the assigning Purchaser, the Agent shall work with the Seller and Servicer in order to find a replacement for such claimant. (c) This Agreement and the ~~Borrower, assign to an assignee all or a portion of its~~ rights and obligations ~~under this Agreement (including all~~ of the Agent hereunder shall be assignable, in whole or ~~a portion of~~ in part, by the Agent and its ~~outstanding Advances or interests therein owned by it~~successors and assigns; provided, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that:~~ that unless (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~~ to an Affiliate of LaSalle, (ii) it becomes unlawful for LaSalle to serve as Agent, or (iii) 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 Termination Event ~~of Default~~ has occurred and is continuing) , the Seller has consented to such assignment, which consent shall not unreasonably be ~~permitted~~withheld or delayed. (bd) ~~Borrower~~ Except as provided in Section 4.1 (d), none of the Seller, AAR 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 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~~ Without limiting any other ~~Facility Document~~rights that may be available under applicable law, ~~each Lender hereunder, and each Participant, must at all times~~ the rights of the Purchasers 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

Sources: Receivables Purchase Agreement (Aar Corp)

Assignability. ~~(a) Each Lender may, with~~ The rights and obligations of the parties under this Repurchase Agreement and under any Transaction shall not be assigned by the Seller without the prior written consent of Buyer. Subject to the ~~Administrative Agent~~ foregoing, this Repurchase Agreement and any Transactions shall be binding upon and shall inure to the ~~Borrower~~benefit of the parties and their respective successors and assigns. Nothing in this Repurchase Agreement express or implied, shall give to any Person, other than the parties to this Repurchase Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Repurchase Agreement. Buyer may from time to time assign ~~to an assignee~~ all or a portion of its rights and obligations under this Repurchase Agreement and the Facility Documents; provided, however that Buyer shall maintain, for review by the Seller upon written request, a copy of an executed assignment and acceptance by Buyer and assignee (~~including~~ “Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, the Seller shall continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller. The Buyer may sell participations to one or more Persons in or to all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Repurchase Agreement; ~~provided~~ provided, however, that (Ai) ~~such participant is not a Disqualified Lender, (B) such Lender~~the Buyer’s obligations under this Repurchase Agreement shall remain unchanged, (Cii) ~~such Lender~~ the Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) ~~such Borrower,~~ the ~~Agents and the other Lenders~~ Seller shall continue to deal solely and directly with ~~such Lender~~ the Buyer in connection with ~~such Lender~~the Buyer’s rights and obligations under this Repurchase Agreement and ~~(E)~~ the other Facility Documents. Notwithstanding the terms of Section 7, 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 participant 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 Buyer shall be entitled to ~~any amount~~ the additional compensation and other rights and protections afforded the Buyer under Section ~~2.10, 2.11, or 13.03 which is greater than~~ 7 to the ~~amount~~ same extent as the ~~related Lender~~ Buyer would have been entitled to ~~under any such Sections or provisions if the applicable participation had not occurred, except~~ receive them with respect to the ~~extent~~ participation sold to such ~~entitlement~~ participant. The Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to ~~receive a greater amount results from a Change in Law~~ this Section 18, disclose to the assignee or participant or proposed assignee or participant, as the case may be, any information relating to the Seller or any of its Subsidiaries or to any aspect of the Transactions that ~~occurs after~~ has been furnished to the ~~Participant acquired~~ Buyer by or on behalf of the ~~applicable participation. (ii)~~ Seller or any of its Subsidiaries; provided that such assignee or participant agrees to hold such information subject to the confidentiality provisions of this Repurchase Agreement. In the event ~~that any Lender sells participations in any~~ the Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this ~~Agreement notwithstanding any notice to the contrary. For the avoidance of doubt~~Repurchase Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Repurchase Agreement to ~~secure obligations of such Lender, including any pledge or security interest granted~~ add agency provisions similar to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee those included in repurchase agreements for ~~such Lender as a party hereto~~similar syndicated repurchase facilities.

Appears in 1 contract

Sources: Master Repurchase Agreement (First NLC Financial Services Inc)

Assignability. (a) ~~Each Lender may~~Paragraph 15(a) of the Agreement is hereby amended (i) by inserting the following words after the first occurrence of the words “other party,” in the first sentence thereof: “such prior written consent not to be unreasonably withheld (it being understood that the Seller may withhold its consent if the proposed transferee would be required to withhold amounts on account of any Taxes from any payments that it is required to make to Seller pursuant to paragraph 13(a) of Annex I hereto in excess of such amounts that Buyer would be required to withhold at the time the assignment or transfer would occur),” and (ii) by inserting the following words at the end of the first sentence thereof: “, ~~with~~ provided that the transfer of the rights and obligations of Buyer under the Agreement and the Transactions thereunder to any “affiliate” (as defined in Rule 12b-2 under the Securities Exchange Act of 1934) of Buyer does not require the prior consent of the ~~Administrative Agent~~ other party, if (i) such affiliate at the time of the assignment or transfer would not be required to withhold amounts on account of any withholding tax or other Taxes from any payments that it is required to make to Seller pursuant to paragraph 13(a) of Annex I hereto, (ii) any such assignment or transfer does not result in Seller being obligated to withhold amounts in respect of any withholding tax or other Taxes from any payment to any transferee of Buyer, (iii) any such assignment or transfer could not reasonably be expected to result in Seller having to comply with any additional legal or regulatory requirement if such compliance would have an adverse effect on Seller, (iv) the credit ratings of such affiliate are equal to or better than the credit ratings of Buyer immediately prior to such assignment or transfer, (v) such assignment or transfer is completed at no cost or expense to Seller (other than Seller’s incidental costs and expenses, not to exceed $5,000, relating to the review and execution of transfer documentation and the ~~Borrower~~registration of the Purchased Securities in the name of the transferee) and does not otherwise increase Seller’s costs and expenses in respect of the Agreement and the Transactions thereunder, ~~assign to an~~ (vi) Seller shall have received 30 calendar days’ prior notice of any proposed assignment or transfer, and (vii) such assignee ~~all~~ or transferee is organized under the laws of a ~~portion~~ jurisdiction located in the United States. (b) Buyer agrees that any transfer of its rights and obligations under ~~this~~ the Agreement ~~(including all or a portion of its outstanding Advances or interests therein owned~~ shall be effected 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 novation 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~~the terms of a novation agreement substantially in the form of Schedule A hereto (a “Novation Agreement”), which contemplates the transfer of all (but not less than all) ~~or (y) such assignment is required as a result~~ of ~~any Change~~ Buyer’s rights and interest 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~~ Agreement and the ~~applicable tax forms required by Section 13.03(g)~~Purchased Securities and in accordance with Paragraph 15(a) of the Agreement as amended herein. ~~Notwithstanding any other provision~~ Any transfer in violation of this ~~Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution~~ subparagraph (~~except if an Event of Default has occurred and is continuing~~b) shall be ~~permitted~~null and void. (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 1 contract

Sources: Master Repurchase Agreement (Integrated Device Technology Inc)

Assignability. ~~(a) Each Lender may, with~~ The rights and obligations of the parties under this Repurchase Agreement and under any Transaction shall not be assigned by any Seller without the prior written consent of Buyer. Subject to the ~~Administrative Agent~~ foregoing, this Repurchase Agreement and any Transactions shall be binding upon and shall inure to the ~~Borrower~~benefit of the parties and their respective successors and assigns. Nothing in this Repurchase Agreement express or implied, shall give to any Person, other than the parties to this Repurchase Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Repurchase Agreement. Buyer may from time to time assign ~~to an assignee~~ all or a portion of its rights and obligations under this Repurchase Agreement and the Facility Documents to (~~including~~ i) any Affiliate or (ii) upon Sellers’ prior written consent (which shall not be unreasonably withheld) or following the occurrence and continuance of an Event of Default, to any Person other than an Affiliate; in each case pursuant to an executed assignment and acceptance by Buyer and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, the Sellers 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 Sellers. The Buyer may sell participations to one or more Persons in or to all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed; (provided that a Lender may not make any such assignment pursuant to this clause (i)(A) to a Disqualified Institution) and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required as a result of any Change in Law. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and is continuing) shall be permitted. (b) Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders. (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Repurchase Agreement; ~~provided~~ provided, however, that (Ai) ~~such participant is not a Disqualified Lender, (B) such Lender~~the Buyer’s obligations under this Repurchase Agreement shall remain unchanged, (Cii) ~~such Lender~~ the Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; and (Diii) ~~such Borrower,~~ the ~~Agents and the other Lenders~~ Sellers shall continue to deal solely and directly with ~~such Lender~~ the Buyer in connection with ~~such Lender~~the Buyer’s rights and obligations under this Repurchase Agreement and ~~(E) each Participant shall have agreed~~ the other Facility Documents except as provided in Section 7. The Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to ~~be bound by~~ this Section ~~13.06(c)~~18, ~~Section 13.06(d)~~disclose to the assignee or participant or proposed assignee or participant, ~~Section 13.06(e) and Section 13.17. Any agreement pursuant~~ as the case may be, any information relating to ~~which a Lender sells such a participation shall provide~~ the Sellers or any of their Subsidiaries or to any aspect of the Transactions that ~~such Lender shall retain~~ has been furnished to the ~~sole right to enforce this Agreement and to approve~~ Buyer by or on behalf of the Sellers or any ~~amendment, modification or waiver~~ of ~~any provision of this Agreement~~their Subsidiaries; provided that such ~~agreement may provide that~~ assignee or participant agrees in a writing reasonably acceptable to Sellers to hold such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (information subject to the ~~requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the~~ confidentiality provisions of ~~Section 13.03(g) as if it were an assignee under clause (a) of~~ this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation. (ii) Repurchase Agreement. In the event ~~that any Lender sells participations in any~~ the Buyer assigns all or a portion of its rights and obligations hereunder, such ▇▇▇▇▇▇ as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this ~~Agreement notwithstanding any notice to the contrary. For the avoidance of doubt~~Repurchase Agreement, the ~~Administrative Agent (~~parties hereto agree to negotiate in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower good faith an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party amendment to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Individual Lender Maximum Funding Amount to any Person unless (A) such Person shall have represented and agreed in writing that it is a Qualified Purchaser and a QIB at the time of such assignment or participation, (B) such Person agrees that it will be bound by the restrictions on contained in this Section 13.06(e), (C) a copy of any such representations or agreements shall have been furnished to the Borrower and (D) any such representations or agreements shall run to the benefit of and be enforceable by the Borrower. (f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Repurchase Agreement to ~~secure obligations of such Lender, including any pledge or security interest granted~~ add agency provisions similar to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee those included in repurchase agreements for ~~such Lender as a party hereto~~similar syndicated repurchase facilities.

Appears in 1 contract

Sources: Master Repurchase Agreement (New Century Financial Corp)

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)

Assignability. (aA) The Borrowers shall not have the right to assign this Credit 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 Borrowers. (C) Each Lender ~~may, with the consent of the Administrative Agent and the Borrower,~~ may assign to one or more banks, other financial institutions or investment funds (each, an ~~assignee~~ "ELIGIBLE 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~~Credit Agreement, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of~~ the ~~Borrower’s~~ Notes and the ~~Administrative Agent’s consent to any such~~ other Credit Documents; PROVIDED that, except in the case of an 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~~ Federal Reserve Bank (~~B) shall not~~ which may be ~~required if the assignee is a Permitted Assignee with respect to such assignor; and~~ made without condition or restriction), (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 (yI) such assignment ~~is required~~ shall be for a fixed and not varying percentage of the assigning Lender's Loans, L/C Participations and Commitment, (II) the 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 ~~Borrower~~Funds Administrator shall consent to such assignment (which consents 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, 110 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) (and, in the case of an Assignment and Assumption Agreement ~~shall remain unchanged, (C) such Lender shall remain solely responsible to~~ covering all or the ~~other parties hereto for 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 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 and to exercise such powers under this Credit 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 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~~ 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 thereon~~the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Funds 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. (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 ~~Acceptance~~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 (iiIII) ~~on each date on which~~ 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 ~~makes an Advance~~ pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained a 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 ~~participation~~Notes, ~~(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 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 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 Bank~~payments 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 hereto~~SECTION 11.7.

Appears in 1 contract

Sources: Credit Agreement (Wellman 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~~ The rights and obligations of Seller under ~~this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it~~the Transaction Documents, ~~together with ratable portions of its Individual Lender Maximum Funding Amount); provided that: (i) each of~~ the ~~Borrower’s~~ Hedging Transactions and ~~the Administrative Agent’s consent to~~ under any ~~such assignment (A)~~ Transaction 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 assigned 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 Seller without the prior written consent of ~~the Agents and the Lenders~~Buyer. (ib) ~~Any Lender may~~Buyer may at any time, without the consent ~~of,~~ of but with notice ~~to, the Borrower~~to Seller, sell participations to ~~Participants~~ any Person (other than (1) a natural Person or (2) Seller, Guarantors or any Affiliate of Seller or Guarantors, or (3) any Prohibited Transferee) (a “Participant”) in all or a any portion of ~~such Lender~~Buyer’s rights ~~and~~ and/or obligations under ~~this Agreement~~the Repurchase Documents; ~~provided~~ provided, however, that so long as no Event of Default exists, with respect to participations only (Ai) ~~such participant is not a Disqualified Lender, (B) such Lender~~Buyer’s obligations under ~~this Agreement~~ the Transaction Documents shall remain unchanged, (Cii) ~~such Lender~~ Buyer shall remain solely responsible to ~~the other parties hereto~~ Seller for the performance of such ~~obligations~~obligations (including, without limitation, the determination of (A) whether any Purchased Loan is an Eligible Loan, (DB) ~~such Borrower~~the Market Value of any Purchased Loan, and (C) whether any Margin Deficit, Default or Event of Default has occurred or is continuing, it being understood and agreed that nothing herein shall restrict or limit Buyer’s right to consult with and consider the ~~Agents~~ views and ~~the other Lenders~~ opinions of any participants under this Agreement), and (iii) Seller shall continue to deal solely and directly with ~~such Lender~~ Buyer in connection with ~~such Lender~~Buyer’s rights and obligations under ~~this Agreement~~ the Repurchase Documents; and provided, further that, so long as no Event of Default exists, any consent rights of such third parties (Eother than affiliates of Buyer) ~~each Participant~~ shall ~~have agreed~~ be limited to ~~be bound~~ reductions in the Repurchase Price, reductions in other amounts payable by ~~this~~ Seller or Guarantor (other than reductions resulting from an early repurchase or otherwise pursuant to Section ~~13.06(c~~3(h)), ~~Section 13.06(d~~extension of dates for (other than Seller’s election of its Extension Option pursuant to this Agreement), and reductions in amounts of, other required payments of the Repurchase Price, other customary non-material matters and releases of Seller, Guarantor, Underlying Obligors or Purchased Loans, except pursuant to this Agreement. For the avoidance of doubt, the parties agree that any participant shall be entitled to the benefits of Section ~~13.06(e~~3(n) 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 25 (subject to the requirements and limitations ~~set forth in Section 13.03~~therein, including the requirements under Section ~~13.03(g)); provided~~ 25(d) and Section 25(e) (it being understood that (Athe documentation required under Section 25(d) ~~such Participant agrees to~~ and Section 25(e) shall be ~~subject~~ delivered to the ~~provisions of Section 13.03(g~~participating Buyer)) to the same extent as if it ~~were an assignee under clause (a) of this Section 13.06 and (B) no Participant~~ had acquired its interest by assignment, provided that such participant shall not be entitled to receive any ~~amount~~ greater payment under Section ~~2.10, 2.11,~~ 3(n) or ~~13.03 which is greater~~ Section 25 than ~~the amount the related Lender~~ its participating Buyer would have been entitled to ~~under any~~ receive with respect to the interest sold to such ~~Sections or provisions if the applicable participation had not occurred~~participant, except to the extent such entitlement to receive a greater ~~amount~~ payment results from ~~a Change~~ the adoption of or any change in any Requirement of Law ~~that occurs~~ or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer (or such participant) with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority having jurisdiction over Buyer (or such participant), in each case made or issued after the ~~Participant~~ participant acquired the applicable participation. (iic) ~~In the event that any Lender sells participations in any~~ Buyer may assign or sell all or a portion of its rights and obligations ~~hereunder~~under the Transaction Documents and under any Transaction and all or a portion of its rights and interests in any Hedging Transaction, in each case, without the prior consent of Seller; to any of the following Persons: (I) after an Event of Default has occurred and is continuing, any Person designated by Buyer for purposes of this Section 17(c), without exception or restriction, and (II) prior to the occurrence of an Event of Default, any of the following Persons designated by Buyer for purposes of this Section 17(c): (1) a bank, financial institution, pension fund, insurance company or similar Person or an Affiliate of any of the foregoing, and any Affiliate of Buyer, which in each case, (x) is not a Prohibited Transferee and (y) is regularly engaged in the business of making or owning commercial real estate loans or operating commercial mortgage properties, and (2) any other Person to which Seller has consented, such ~~▇▇▇▇▇▇~~ consent not to be unreasonably withheld, delayed or conditioned, unless the proposed Person is a Prohibited Transferee, in which case such consent of Seller may be unreasonably withheld, conditioned or delayed; provided that, in connection with any sale or assignment by Buyer of its rights and obligations under the Transaction Documents pursuant to this Section 17(c), any Transaction or any portion thereof, prior to the occurrence of an Event of Default, (i) Buyer shall at all times retain control and security over its rights and obligations under the Transaction Documents and any Transaction (including, without limitation, the determination of (A) whether any Purchased Loan is an Eligible Loan, (B) the Market Value of any Purchased Loan, and (C) whether any Margin Deficit, Default or Event of Default has occurred or is continuing, it being understood and agreed that nothing herein shall restrict or limit Buyer’s right to consult with and consider the views and opinions of any assignee or transferee of Buyer’s rights under this Agreement), (ii) Seller shall not be obligated or required to deal directly or indirectly with any Person other than Buyer, and (iii) Seller shall not be charged for, incur or be required to pay or reimburse Buyer or any other Person for any costs or expenses relating to any such assignment, participation, sale or other transfer. (d) Buyer, acting solely for this purpose as ~~nonfiduciary~~ a non-fiduciary agent of Seller, shall maintain a register for the ~~Borrower~~ recordation of the names and addresses of the Buyers, and the Repurchase Price and Price Differential owing to each such Buyer (the “Register”). 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 for all purposes of this Agreement. The Register shall be available for inspection by the Seller at any reasonable time and from time to time upon reasonable prior notice. (e) Each Buyer that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of ~~all participants in~~ the ~~Advances held by it~~ applicable participant and, with respect to each such participant, the participated Repurchase Price and ~~the principal amount of (and stated interest on) of the portion of the Advance which is the subject of the participation~~ Price Differential (the “Participant Register”)~~; provided that no Lender~~ . No 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 ~~Participant~~participant’s interest in any ~~commitments, loans or its other~~ obligations under any ~~Facility~~ Transaction 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 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 participating Buyer shall treat each Person whose name is recorded in the Participant Register as ~~a Lender hereunder~~ the owner of the applicable participation 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~~ Subject to the foregoing, the Transaction Documents and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in the Transaction Documents, express or implied, shall give to any Person, other ~~provision of this Section 13.06~~than the parties to the Transaction Documents and their respective successors, 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) 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 ~~Borrower~~Borrower (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 it~~respective 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 2.10~~interest, ~~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 thereon~~the "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 Borrower~~form 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 participation~~Register, (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 ~~Borrower~~Surrendered 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 Bank~~the 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 hereto~~shall receive the prior written consent of the Agent.

Appears in 1 contract

Sources: Credit Agreement (Todhunter International Inc)

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 of~~such 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 Register~~run with the Licensed Patents and/or Unlicensed Patents and shall be binding on any successors-in-interest or assigns thereof. ~~(d) The Administrative Agent~~6.2 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 “~~Register~~Separated 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 Note~~foregoing, 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 ~~Borrower~~future 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 hereto~~amended.

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 Borrower~~which 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 Law~~existing 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 13.06~~the 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 may~~The 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 of~~references in Sections 2.06, ~~but with notice to~~2.07, ~~the Borrower~~2.08, ~~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(e~~reserve 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 2.10~~any 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 ~~Borrower~~loan 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 13.06~~Existing 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(c~~a 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 thereon~~the "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 Borrower~~form 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 Borrower~~consent 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 it~~and 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(g~~assignee, 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 13.06~~Agreement 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 Borrower~~By 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 thereon~~the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and ~~the Borrower~~Borrowers, ~~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 13.06~~Agreement (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 interest~~i) 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 Bank~~waiver 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 hereto~~possession regarding Borrowers.

Appears in 1 contract

Sources: Loan and Security Agreement (Amcon Distributing Co)

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 ~~Borrower~~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 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 (including all or a portion of its outstanding Advances or interests therein owned by it~~Credit Agreement, ~~together with ratable portions of its Individual Lender Maximum Funding Amount)~~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, provided that no such assignment to a Federal Reserve Bank shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto), (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 Commitment, (ii) the ~~Borrower’s~~ Agent (after prior consultation with the Funds Administrator) shall consent to ~~any~~ such ~~assignment pursuant to this Section 13.06(a~~assignment), (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 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 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 $5,000 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 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 Lender, 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 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 represents and warrants that it is a bank, savings and loan association or other similar savings institution, insurance company, investment fund or company or other financial institution that makes or acquires commercial loans in the ordinary course of its business, that it is participating hereunder as a Lender for such commercial purposes, and that it has the knowledge and experience to be and is capable of evaluating the merits and risks of being a Lender hereunder; (v) 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; (vi) 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 (vii) 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 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 thereon~~the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Funds Administrator, each of the Borrowers, 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 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.Credit

Appears in 1 contract

Sources: Credit Agreement (Bway Corp)

Common use of Assignability Clause in Contracts